SENATE BILL 122
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Steven P. Neville
AN ACT
RELATING TO REAL PROPERTY; ENACTING A MECHANISM FOR EXPEDITED FORECLOSURE OF VACANT AND ABANDONED RESIDENTIAL PROPERTY; PROVIDING THAT A MORTGAGE HOLDER MAY ENTER AND SECURE VACANT AND ABANDONED RESIDENTIAL PROPERTY UNDER CERTAIN CIRCUMSTANCES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] RESIDENTIAL PROPERTY DEFINED.--As used in Sections 1 through 5 of this act, "residential property" means real property located within this state consisting of land and a structure on that land containing four or fewer dwelling units, each of which is intended for occupancy by a separate household. "Residential property" includes a residential condominium unit owned by an individual, notwithstanding the number of units in the structure, and a manufactured or mobile home.
SECTION 2. [NEW MATERIAL] VACANT AND ABANDONED RESIDENTIAL PROPERTY.--A residential property shall be considered vacant and abandoned if:
A. the owner of the residential property is in default on the residential mortgage loan secured by the residential property;
B. two or more of the following circumstances apply:
(1) at the time of any inspection of the residential property by a state, county or municipal official, or by the mortgage holder or an agent of the mortgage holder, no person is visibly present from an exterior inspection of the residential property;
(2) no utility connections, including water, sewer, natural gas or electric connections, service the residential property, or no such utility connections are actively being billed by any utility provider regarding the residential property;
(3) junk, litter, trash, debris or hazardous, noxious or unhealthy substances or materials have accumulated on the residential property;
(4) furnishings, window treatments and personal items are absent from the residential property;
(5) neighbors, delivery persons or government employees provide statements indicating that the residential property is vacant and abandoned;
(6) a risk to the health and safety or welfare of the public, or any adjoining or adjacent property owners, exists due to acts of vandalism, loitering, criminal conduct or the physical destruction or deterioration of the residential property;
(7) a mortgagor issues a written statement expressing clear intent of all mortgagors to abandon the residential property; or
(8) any other reasonable indicia that the residential property is vacant and abandoned exist; and
C. the owner of the residential property fails to submit evidence sufficient to negate a finding that the residential property is vacant and abandoned.
SECTION 3. [NEW MATERIAL] EXPEDITED FORECLOSURE PROCESS FOR VACANT AND ABANDONED RESIDENTIAL PROPERTY.--
A. If a residential mortgage loan is secured by residential property that appears to be vacant and abandoned pursuant to this section, and the owner of the residential property is in default on the loan, the mortgage holder may bring a summary action in a court of competent jurisdiction to foreclose on that residential mortgage loan.
B. If, at the time that a mortgage holder brings an action to foreclose on a residential mortgage loan, the mortgage holder files a motion for summary foreclosure pursuant to this section, the court shall hear the motion for summary foreclosure not earlier than before the period to answer the foreclosure complaint has expired and not later than fifteen days after the period to answer the foreclosure complaint has expired. If the mortgage holder files the motion for summary foreclosure after the period to answer the foreclosure complaint has expired, the court shall hear the motion not later than fifteen days after the motion is filed.
C. A motion for summary foreclosure pursuant to this section shall be supported by affidavit and shall:
(1) set forth the facts demonstrating that the residential property is vacant and abandoned; and
(2) contain an itemization of the amount of principal, interest, costs, fees, expenses and any additional charges that are outstanding.
D. Service of a motion for summary foreclosure shall be made by mailing a copy to the mortgagor at the mortgagor's last known address and by posting notice at the residential property subject to foreclosure as required pursuant to Section 5 of this act.
E. At the hearing held pursuant this section, the court shall determine whether a residential property is vacant and abandoned. If the court finds that the residential property is vacant and abandoned, the court shall grant the motion and immediately enter judgment on the foreclosure complaint. If the court enters a final judgment of foreclosure, the reinstatement period and redemption period for the residential property shall end in accordance with Section 39-5-19 NMSA 1978. Notwithstanding the provisions of Section 39-5-1 NMSA 1978, publication of notice of the sale shall be once a week for two consecutive weeks.
SECTION 4. [NEW MATERIAL] RIGHT OF MORTGAGE HOLDER TO SECURE PROPERTY--IMMUNITY.--
A. If a mortgage holder has filed a motion for summary foreclosure, the mortgage holder may enter the residential property to secure and protect it from damage. B. No mortgage holder or agent of the mortgage holder acting pursuant to Subsection A of this section shall be liable to the mortgagor or other owner of a vacant and abandoned residential property in any action for negligence or trespass in connection with entering, securing or protecting the abandoned residential property from damage; provided, however, that prior to entry of a final judgment of foreclosure, a mortgage holder shall not be deemed to have a responsibility to enter, secure or protect a residential property from damage.
SECTION 5. [NEW MATERIAL] NOTICE TO BE POSTED AT PROPERTY.--Notice pursuant to this section shall be conspicuously posted at the property subject to foreclosure at least fourteen days before a hearing on a motion requesting an expedited judgment and sale and shall be in not less than twelve-point boldface type and in substantially the following form:
"NOTICE TO ANY TENANT OR OTHER LAWFUL OCCUPANT OF THIS PROPERTY
A lawsuit has been filed to foreclose on this property, and the party asking to foreclose on this property has asked a judge to find that THIS PROPERTY IS VACANT AND ABANDONED.
The judge will be holding a hearing to decide whether this property is VACANT AND ABANDONED.
IF YOU LAWFULLY OCCUPY ANY PART OF THIS PROPERTY, YOU MAY CHOOSE TO GO TO THE HEARING and explain to the judge how you are a lawful occupant of this property.
If the judge is satisfied that you are a LAWFUL OCCUPANT of this property, the court will find that this property is NOT VACANT AND ABANDONED.
The hearing will be held in the courthouse at the following address, date and time:
Court name:____________________________________________________
Court address:_________________________________________________
Date of hearing:_______________________________________________
Time of hearing:_______________________________________________
Name of lawsuit:_______________________________________________
Number of lawsuit:_____________________________________________
Address of this property:____________________________________".
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