HOUSE BILL 300
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Al Park
AN ACT
RELATING TO LIENS; CLARIFYING THE CONTENTS OF A LIEN CLAIM; REQUIRING A DETERMINATION BY THE COUNTY CLERK; ALLOWING DAMAGES, COSTS AND FEES FOR THE OWNER OF PROPERTY IF A LIEN IS INVALID, FRIVOLOUS OR CLEARLY EXCESSIVE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 48-2-6 NMSA 1978 (being Laws 1880, Chapter 16, Section 6, as amended) is amended to read:
"48-2-6. TIME FOR FILING LIEN CLAIM--CONTENTS.--Every original contractor, within one hundred [and] twenty days after the completion of [his] a contract, and every person, except the original contractor, desiring to claim a lien pursuant to Sections 48-2-1 through [48-2-19] 48-2-17 NMSA 1978 [must] shall, within ninety days after the completion of any building, improvement or structure or after the completion of the alteration or repair [thereof] of the building, improvement or structure or the performance of any labor in a mining claim, file for record with the county clerk of the county in which [such] the property or some part [thereof] of it is situated a claim containing a statement of [his] demands, after deducting all just credits and offsets. The claim shall state the name of the owner or reputed owner, if known; [and also] the name of the person by whom [he] the claimant was employed or to whom [he] the claimant furnished the materials; [and shall include] a statement of the terms, time given and the conditions of the contract; [and also] a description of the property to be charged with the lien, sufficient for identification; and a statement of the circumstances of nonpayment by the owner or original contractor and a statement that the claim is being filed within the appropriate time frame prescribed in this section. The claim [must] shall be verified by the oath of [himself or of some other person] the claimant."
Section 2. Section 48-2-8 NMSA 1978 (being Laws 1880, Chapter 16, Section 8, as amended) is amended to read:
"48-2-8. RECORDING OF LIENS--INDEXING--FEES.--[The county] If the claim is a verified claim that meets the requirements of Section 48-2-6 NMSA 1978, which the county clerk shall determine, the clerk [must] shall record the claim in a book kept [by him] for that purpose [which]. The record [must] shall be indexed as deeds and other conveyances are required by law to be indexed, [and] for which [he] the county clerk may receive the same fees as are allowed by law for recording deeds and other instruments. [Any claim, the form of which complies with the requirements of this article, shall be entitled to be filed of record and] A claim pursuant to this section need not comply with the requirements of Section 14-8-4 NMSA 1978."
Section 3. A new section of Chapter 48, Article 2 NMSA 1978 is enacted to read:
"[NEW MATERIAL] FRIVOLOUS CLAIM--PROCEDURE.--
A. An owner of real property subject to a recorded claim of lien, or a contractor, subcontractor, lender or another lien claimant, who believes the claim of lien to be frivolous and made without reasonable cause, clearly excessive or otherwise invalid may apply by motion to the district court for the county where the property, or some part of it, is located for relief from or cancellation of the lien; for actual damages, costs and attorney fees; and for an order directing the lien claimant to appear before the court, at a time no earlier than six nor later than fifteen days following the date of service of the application and order on the lien claimant, and show cause, if the claimant has any, why the relief requested should not be granted. The motion shall state the grounds upon which relief is asked and shall be supported by the affidavit of the applicant or applicant's attorney setting forth a concise statement of the facts upon which the motion is based.
B. If no action to foreclose the lien claim has been filed, and the application is otherwise proper in the court's determination, the court shall issue an order to show cause that clearly states that if the lien claimant fails to appear at the time and place noted, the lien shall be cancelled or released, with prejudice, and that the lien claimant shall be ordered to pay the reasonable actual damages, costs and attorney fees requested by the applicant. If an action has been filed to foreclose the lien claim, the application shall be made a part of that action.
C. If, following a hearing on the matter, the court determines that the lien is frivolous and made without reasonable cause, clearly excessive or otherwise invalid, the court shall issue an order releasing or cancelling the lien if frivolous and made without reasonable cause or invalid, or reducing the lien if clearly excessive, and awarding actual damages, costs and reasonable attorney fees to the applicant to be paid by the lien claimant. If the court determines that the lien is not frivolous and was made with reasonable cause, is not clearly excessive or otherwise invalid, the court shall issue an order so stating and awarding costs and reasonable attorney fees to the lien claimant to be paid by the applicant.
D. Proceedings under this section shall not affect other rights and remedies available to the parties."
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