0001| HOUSE BILL 1136
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| R. DAVID PEDERSON
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO THE EFFICIENT FILING AND RECORDING OF DOCUMENTS;
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0012| PROVIDING FOR THE PROTECTION OF PUBLIC OFFICIALS AND EMPLOYEES
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0013| AND OTHERS AGAINST NONCONSENSUAL COMMON LAW LIENS.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. SHORT TITLE.--This act may be cited as the
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0017| "Lien Protection Efficiency Act".
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0018| Section 2. FINDINGS--PURPOSE.--
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0019| A. The legislature finds:
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0020| (1) there is a problem with the presentation
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0021| for filing or recording of invalid instruments that purport to
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0022| affect the real or personal property interests of persons,
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0023| including elected or appointed officials and employees of
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0024| state, local and federal government. These instruments, which
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0025| have no basis in fact or law, have serious disruptive effects
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0001| on property interests and title, appear on title searches and
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0002| other disclosures based on public records and are costly and
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0003| time- consuming to expunge. As against public officials and
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0004| employees, these instruments have serious disruptive effects on
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0005| the conduct of government business and are costly and time-
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0006| consuming to both government entities and individual officials
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0007| and employees;
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0008| (2) officials and employees authorized by law
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0009| to accept for filing or recording liens, deeds, instruments,
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0010| judgments or other documents purporting to establish
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0011| nonconsensual common law liens do not have discretionary
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0012| authority or mechanisms to prevent the filing, recording or
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0013| disclosure of frivolous lien claims if the documents comply
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0014| with certain minimum format requirements. It would be
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0015| inefficient and would require substantial government
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0016| expenditure to have the legal sufficiency of documents
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0017| submitted for filing or recording determined in advance of
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0018| acceptance; and
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0019| (3) it is necessary and in the best interest
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0020| of New Mexico and its citizens to legislatively provide a means
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0021| to relieve this problem, to prevent the filing, recording or
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0022| disclosure of frivolous lien claims and to authorize actions to
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0023| void frivolous lien claims.
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0024| B. The purpose of the Lien Protection Efficiency
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0025| Act is to provide for the efficient filing and recording of
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0001| documents and the protection of public officials and employees
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0002| and the citizens of the state against nonconsensual common law
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0003| liens by imposing limitations on the circumstances in which
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0004| nonconsensual common law liens shall be recognized in the
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0005| state.
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0006| Section 3. DEFINITIONS.--As used in the Lien Protection
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0007| Efficiency Act:
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0008| A. "court" means:
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0009| (1) a court created by the constitution of the
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0010| United States or pursuant to federal law, including but not
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0011| limited to the United States supreme court, the United States
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0012| courts of appeals, the United States district or administrative
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0013| courts or other federal courts of inferior jurisdiction, but
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0014| does not include administrative adjudicative bodies;
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0015| (2) a court created by the constitution of New
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0016| Mexico or pursuant to New Mexico law, including but not limited
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0017| to the state supreme court, the state court of appeals, state
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0018| district courts, magistrate courts, metropolitan courts and
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0019| municipal courts, but does not include administrative
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0020| adjudicative bodies; and
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0021| (3) a court comparable to any of those listed
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0022| in Paragraph (2) of this subsection that is created by the
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0023| constitution of another state or pursuant to the state law of
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0024| another state;
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0025| B. "federal official or employee" means an
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0001| appointed or elected official or any employee of a federal
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0002| agency, board, commission or department in any branch of the
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0003| federal government;
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0004| C. "filing officer" means the secretary of state,
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0005| the clerk of any county or court or any state, local or federal
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0006| official or employee authorized by law to accept for filing and
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0007| keep as a public record any lien, deed, instrument, judgment or
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0008| other document, whether paper, electronic or other form.
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0009| D. "lien" means an encumbrance on property as
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0010| security for the payment of a debt;
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0011| E. "nonconsensual common law lien" means a
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0012| document, regardless of self-description, that purports to
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0013| assert a lien against the assets, real or personal, of any
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0014| person that:
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0015| (1) is not expressly provided for by a
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0016| specific state or federal statute;
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0017| (2) does not depend upon the consent of the
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0018| owner of the property affected or the existence of a contract
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0019| for its existence; or
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0020| (3) is not an equitable or constructive lien
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0021| imposed by a court of competent jurisdiction; and
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0022| F. "state or local official or employee" means an
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0023| appointed or elected official or any employee of a state
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0024| agency, board, commission, department in any branch of state
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0025| government, or state institution of higher education, or a
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0001| school district, political subdivision or unit of local
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0002| government of this state;
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0003| Section 4. CONSTRUCTION.--
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0004| A. Nothing in the Lien Protection Efficiency Act
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0005| shall be construed to create a lien or interest in property not
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0006| otherwise existing under state or federal law.
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0007| B. Nothing in this act is intended to affect any
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0008| lien provided for by statute, any consensual lien now or
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0009| hereafter recognized under common law of the state or the
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0010| ability of the courts to impose equitable or constructive
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0011| liens.
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0012| Section 5. NON-ENFORCEABILITY OF NONCONSENSUAL COMMON LAW
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0013| LIENS.--Nonconsensual common law liens against real property
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0014| shall not be recognized nor be enforceable. Nonconsensual
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0015| common law liens claimed against any personal property shall
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0016| not be recognized nor be enforceable if, at any time the lien
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0017| is claimed, the claimant fails to retain actual lawfully
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0018| acquired possession or exclusive control of the property.
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0019| Section 6. INVALIDITY OF CLAIM OF LIEN AGAINST A STATE,
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0020| LOCAL OR FEDERAL OFFICIAL OR EMPLOYEE--FILING OF NOTICE OF
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0021| INVALID LIEN.--
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0022| A. Any claim of lien against a state, local or
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0023| federal official or employee based on the performance or
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0024| nonperformance of that official's or employee's duties shall be
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0025| invalid unless accompanied by a specific order from a court of
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0001| competent jurisdiction authorizing the filing of such a lien or
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0002| unless a specific statute authorizes the filing of such a lien.
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0003| B. If a claim of lien as described in Subsection A
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0004| of this section has been accepted for filing, the filing
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0005| officer shall accept for filing a notice of invalid lien signed
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0006| and submitted by an assistant attorney general representing the
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0007| state agency, board, commission or department of which the
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0008| individual is an official or employee; the attorney
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0009| representing the state institution of higher education, school
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0010| district, political subdivision or unit of local government of
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0011| this state of which the individual is an official or employee;
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0012| or an assistant United States attorney representing the federal
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0013| agency of which the individual is an official or employee. A
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0014| copy of the notice of invalid lien shall be mailed by the
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0015| attorney to the person who filed the claim of lien at that
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0016| person's last known address.
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0017| Section 7. NO DUTY TO ACCEPT OR TO DISCLOSE COMMON LAW
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0018| LIEN--IMMUNITY FROM LIABILITY.--
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0019| A. No filing officer has a duty to accept for
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0020| filing or recording any claim of lien unless the lien is
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0021| authorized by statute or imposed by a court of competent
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0022| jurisdiction having jurisdiction over property affected by the
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0023| lien.
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0024| B. No filing officer has a duty to accept for
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0025| filing or recording any claim of lien against a state, local or
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0001| federal official or employee based on the performance or
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0002| nonperformance of that official's or employee's duties unless
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0003| accompanied by a specific order from a court of competent
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0004| jurisdiction having jurisdiction over property affected by a
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0005| lien, authorizing the filing of such a lien.
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0006| C. No filing officer has the duty to disclose an
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0007| instrument of record or filing that attempts to give notice of
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0008| a common law lien. This subsection does not relieve any filing
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0009| officer of any duty that otherwise may exist to disclose a
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0010| claim of a lien authorized by statute or imposed by order of a
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0011| court of competent jurisdiction having jurisdiction over
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0012| property affected by the lien.
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0013| D. No filing officer shall be liable for damages
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0014| arising from a refusal to record or file or a failure to
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0015| disclose any claim of common law lien of record pursuant to
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0016| this section.
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0017| E. No filing officer shall be liable for damages
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0018| arising from the acceptance for filing a claim of lien as
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0019| described in Subsection B of this section, nor for the
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0020| acceptance for filing of a notice of invalid lien pursuant to
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0021| Subsection B of Section 6.
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0022| F. Except as otherwise provided by law, no filing
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0023| officer shall be required to defend decisions to accept or
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0024| reject documents pursuant to Section 6 of this section.
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0025| Section 8. ACTION TO VOID LIEN--ORDER TO SHOW CAUSE--
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0001| SERVICE OF PROCESS.--
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0002| A. Any person whose real or personal property is
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0003| subject to a recorded claim of common law lien who believes the
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0004| claim of lien is invalid may petition the district court of the
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0005| county in which the claim of lien has been recorded for an
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0006| order, which may be granted ex parte, directing the lien
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0007| claimant to appear before the district court, at a time no
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0008| earlier than six nor later than twenty-one days following the
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0009| date of service of the petition and order on the lien claimant,
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0010| and show cause, if any, why the claim of lien should not be
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0011| stricken and other relief provided for by Section 9 of the Lien
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0012| Protection Efficiency Act should not be granted. The petition
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0013| shall state the grounds upon which relief is requested and
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0014| shall be supported by the affidavit of the petitioner or
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0015| petitioner's attorney setting forth a concise statement of the
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0016| facts upon which the claim for relief is based.
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0017| B. Any order rendered pursuant to the petition and
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0018| directing the lien claimant to appear shall clearly state that,
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0019| if the lien claimant fails to appear at the time and place
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0020| noted, the claim of the lien shall be declared void ab initio
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0021| and released and that the lien claimant shall be ordered to pay
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0022| the costs incurred by the petitioner or any other party to the
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0023| proceeding, including reasonable attorney fees, and damages as
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0024| set forth in Section 9 of the Lien Protection Efficiency Act.
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0025| C. The petition and order shall be served upon the
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0001| lien claimant by personal service, or, when the district court
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0002| determines that service by mail is likely to give actual
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0003| notice, the district court may order that service to be made by
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0004| any person over eighteen years of age who is competent to be a
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0005| witness, other than a party, by mailing copies of the petition
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0006| and order to the lien claimant's last known address or any
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0007| other address determined by the district court to be
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0008| appropriate. Two copies shall be mailed, postage prepaid, one
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0009| by ordinary first-class mail and the other by a form of mail
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0010| requiring a signed receipt showing when and to whom it was
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0011| delivered. The envelopes must bear the return address of the
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0012| sender.
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0013| Section 9. ORDERS--LIABILITY FOR COSTS AND ATTORNEY FEES-
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0014| -DAMAGES.--
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0015| A. If, in proceedings pursuant to Section 8 of the
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0016| Lien Protection Efficiency Act, the lien claimant fails to
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0017| appear at the time and place noted, or if, the lien claimant
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0018| having appeared, the district court determines that the claim
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0019| of lien is invalid, the district court shall issue an order
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0020| declaring the lien void ab initio, releasing the lien,
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0021| refunding any court docketing or filing fee to the petitioner
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0022| and awarding other costs and reasonable attorney fees and
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0023| damages as set forth in this section to the petitioner or any
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0024| other party to the proceeding, to be paid by the lien claimant.
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0025| B. If the district court determines that the claim
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0001| of lien is valid, the district court shall issue an order so
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0002| stating and may award costs and reasonable attorney fees to the
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0003| lien claimant to be paid by the petitioner.
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0004| C. Any person who offers to have filed and recorded
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0005| in the office of a filing officer any document purporting to
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0006| create a nonconsensual common law lien against real or personal
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0007| property, knowing or having reason to know that such document
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0008| is forged or groundless, contains a material misstatement or
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0009| false claim or is otherwise invalid, shall be liable to the
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0010| owner of the property affected for actual damages or five
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0011| thousand dollars ($5,000), whichever is greater, plus costs and
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0012| reasonable attorney fees as provided in this section.
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0013| D. A grantee or other person purportedly benefited
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0014| by a filed or recorded document that creates a nonconsensual
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0015| common law lien against real or personal property, knowing or
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0016| having reason to know that such filed or recorded document is
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0017| forged or groundless, contains a material misstatement or false
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0018| claim or is otherwise invalid, who willfully refuses to release
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0019| such filed or recorded document upon request of the owner of
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0020| the property affected, shall be liable to such owner for actual
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0021| damages or five thousand dollars ($5,000), whichever is
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0022| greater, plus costs and reasonable attorney fees as provided in
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0023| this section.
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0024| E. A certified copy of any order rendered pursuant
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0025| to this section shall be filed by the clerk of the district
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0001| court in the office of the appropriate filing officer.
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0002| Section 10. SEVERABILITY.--If any part or application of
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0003| the Lien Protection Efficiency Act is held invalid, the
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0004| remainder of the act or its application to other situations or
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0005| persons shall not be affected.
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0006| Section 11. EFFECTIVE DATE.--The effective date of the
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0007| provisions of this act is July 1, 1997.
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0008| State of New Mexico
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0009| House of Representatives
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0010|
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0011| FORTY-THIRD LEGISLATURE
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0012| FIRST SESSION, 1997
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0013|
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0014|
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0015| March 4, 1997
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0016|
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0017|
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0018| Mr. Speaker:
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0019|
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0020| Your GOVERNMENT AND URBAN AFFAIRS COMMITTEE, to
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0021| whom has been referred
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0022|
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0023| HOUSE BILL 1136
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0024|
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0025| has had it under consideration and reports same with
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0001| recommendation that it DO PASS, amended as follows:
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0002|
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0003| 1. On page 5, line 9, strike the word "nor" and insert in
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0004| lieu thereof "or".
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0005|
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0006| 2. On page 5, line 11, strike the word "nor" and insert
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0007| in lieu thereof "or".
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0008|
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0009| 3. On page 7, line 13, strike the word "nor" and insert
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0010| in lieu thereof "or".
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0011|
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0012| 4. On page 7, line 18, strike the word "of" and insert in
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0013| lieu thereof "or".
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0014|
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0015| 5. On page 8, line 22, strike the word "to".,
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0016|
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0017| and thence referred to the JUDICIARY COMMITTEE.
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0018|
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0019| Respectfully submitted,
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0020|
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0021|
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0022|
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0023|
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0024|
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0025| Lynda M. Lovejoy, Chairwoman
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0001|
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0002|
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0003| Adopted Not Adopted
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0004|
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0005| (Chief Clerk) (Chief Clerk)
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0006|
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0007| Date
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0008|
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0009| The roll call vote was 7 For 0 Against
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0010| Yes: 7
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0011| Excused: Hobbs
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0012| Absent: None
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0013|
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0014|
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0015|
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0016| G:\BILLTEXT\BILLW_97\H1136 State of New Mexico
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0017| House of Representatives
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0018|
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0019| FORTY-THIRD LEGISLATURE
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0020| FIRST SESSION, 1997
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0021|
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0022|
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0023| March 12, 1997
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0024|
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0025|
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0001| Mr. Speaker:
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0002|
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0003| Your JUDICIARY COMMITTEE, to whom has been referred
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0004|
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0005| HOUSE BILL 1136, as amended
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0006|
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0007| has had it under consideration and reports same with
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0008| recommendation that it DO PASS, amended as follows:
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0009|
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0010| 1. On page 7, line 6, after the period insert:
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0011|
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0012| "The existence of a claim of a common law lien in the public
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0013| record does not constitute a defect in the title of or an
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0014| encumbrance on the real property described and does not affect
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0015| the marketability of the title to the property.".
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0016|
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0017| Respectfully submitted,
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0018|
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0019|
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0020|
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0021|
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0022|
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0023| Thomas P. Foy, Chairman
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0024|
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0025|
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0001| Adopted Not Adopted
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0002|
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0003| (Chief Clerk) (Chief Clerk)
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0004|
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0005| Date
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0006|
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0007| The roll call vote was 9 For 0 Against
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0008| Yes: 9
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0009| Excused: Mallory, Rios, Sanchez, Stewart
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0010| Absent: None
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0011|
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0012|
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0013| .118739.1
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0014| G:\BILLTEXT\BILLW_97\H1136
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0015|
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0016| FORTY-THIRD LEGISLATURE
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0017| FIRST SESSION, 1997
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0018|
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0019|
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0020| March 20, 1997
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0021|
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0022| Mr. President:
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0023|
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0024| Your JUDICIARY COMMITTEE, to whom has been referred
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0025|
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0001| HOUSE BILL 1136, as amended
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0002|
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0003| has had it under consideration and reports same with
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0004| recommendation that it DO PASS.
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0005|
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0006| Respectfully submitted,
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0007|
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0008|
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0009|
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0010|
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0011| __________________________________
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0012| Fernando R. Macias, Chairman
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0013|
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0014|
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0015|
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0016| Adopted_______________________ Not
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0017| Adopted_______________________
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0018| (Chief Clerk) (Chief Clerk)
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0019|
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0020|
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0021|
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0022| Date ________________________
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0023|
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0024|
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0025| The roll call vote was 7 For 0 Against
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0001| Yes: 7
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0002| No: 0
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0003| Excused: Tsosie
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0004| Absent: None
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0005|
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0006|
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0007| H1136JU1
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