A. Improper sale, disposal, removal or concealing of encumbered property consists of a person knowingly, and with intent to defraud, selling, transferring, removing or concealing, or in any manner disposing of, any personal property upon which a security interest, chattel mortgage or other lien or encumbrance has attached or been retained, without the written consent of the holder of the security interest, chattel mortgage, conditional sales contract, lien or encumbrance.

B. A broker, dealer or an agent, buyer or seller who receives any remuneration whatsoever for transfer of equity or arranges the assumption of any loan on a mobile home or recreational vehicle that has a lien filed upon the vehicle with the motor vehicle division of the taxation and revenue department shall obtain written consent from the lien holder approving transferee's assumption of transferor's obligation to the lien holder within ten days of the transaction before the transaction is entered into, provided that the lien holder's written consent shall not unreasonably be withheld. Failure to do so constitutes an improper sale, disposal, removal or concealing of encumbered property, which is punishable as a petty misdemeanor.

C. Whoever commits improper sale, disposal, removal or concealing of encumbered property when the value of the property is two hundred fifty dollars ($250) or less is guilty of a petty misdemeanor.

D. Whoever commits improper sale, disposal, removal or concealing of encumbered property when the value of the property is over two hundred fifty dollars ($250) but not more than five hundred dollars ($500) is guilty of a misdemeanor.

E. Whoever commits improper sale, disposal, removal or concealing of encumbered property when the value of the property is over five hundred dollars ($500) but not more than two thousand five hundred dollars ($2,500) is guilty of a fourth degree felony.

F. Whoever commits improper sale, disposal, removal or concealing of encumbered property when the value of the property is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.

G. Whoever commits improper sale, disposal, removal or concealing of encumbered property when the value of the property exceeds twenty thousand dollars ($20,000) is guilty of a second degree felony.

History: 1953 Comp., § 40A-16-18, enacted by Laws 1963, ch. 303, § 16-18; 1977, ch. 281, § 1; 1987, ch. 121, § 7; 2006, ch. 29, § 9.

The 2006 amendment, effective July 1, 2006, increased the value of the property in Subsection C from $100 or less to $250 or less; increased the value of the property in Subsection D from more than $100 but less than $250 to more than $250 but less than $500; and increased the value of the property in Subsection E from more than $250 to more than $500.

The 1987 amendment, effective June 19, 1987, substituted "motor vehicle division of the transportation department" for "New Mexico department of motor vehicles" in the first sentence of the second paragraph and "constitutes" for "will constitute" in the second sentence of that paragraph, added the present fourth and last paragraphs, substituted "two hundred fifty dollars ($250)" for "one hundred dollars ($100)" in the fifth paragraph, and substituted "is over twenty-five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000)" for "exceeds twenty-five hundred dollars ($2,500)" in the sixth paragraph.

"Security interest" refers to encumbrance under Uniform Commercial Code. — By adding the reference "security interest," the legislature recognized a new type of encumbrance set out in the Uniform Commercial Code, 55-1-201(37) NMSA 1978. State v. Woodward, 1983-NMCA-153, 100 N.M. 708, 675 P.2d 1007.

Transfers from special account to operating account constituted larceny. — Under the terms of a "special deposit" agreement, funds deposited in a special account by the depositor were to be paid to the order of a third party, who held a security interest in the funds deposited in the account. The depositor's conduct in persuading the bank to make transfers from the special account to its operating account constituted larceny, theft and false pretenses under New Mexico law. Wells Fargo Bus. Credit v. Am. Bank of Commerce, 780 F.2d 871 (10th Cir. 1985).

"Conditional sales contract". — The term "conditional sales contract," as used in former law prohibiting sale, encumbrance or concealment of property held under a conditional sales contract, meant all contracts intended to hold title to personal property in the former owner, possessor or grantor. State v. Shedoudy, 1941-NMSC-044, 45 N.M. 516, 118 P.2d 280.

Oral conditional sales contracts not recognized. — Former law dealing with the crime of unlawfully selling or disposing of personal property held under a conditional sales contract evinced a legislative understanding that conditional sales contracts are written instruments and that oral conditional sales contracts are not recognized under our law. Allison v. Niehaus, 1940-NMSC-034, 44 N.M. 342, 102 P.2d 659.

Criminal intent. — While Laws 1929, ch. 46 (former 40-21-43 to 40-21-45, 1953 Comp.) did not specifically provide that the prohibited acts of a person, obtaining possession of personal property from its owner by a conditional sales contract and selling it without the consent of such owner, before securing title, be done with criminal intent, the act was manifestly designed to protect the interest of such owner, and the wrong inhered in delaying or defrauding him of his right to repossess his property if the conditional sales contract was breached by the buyer, and the specific conduct charged must have been actuated by such intent, to constitute a crime under the statute. State v. Shedoudy, 1941-NMSC-044, 45 N.M. 516, 118 P.2d 280.

Criminal intent negatived. — Where mortgagor removed mortgaged cattle to another state for grazing with oral consent on part of the mortgagee, mortgagor did not have the requisite criminal intent in moving the cattle to constitute offense of removing and concealing mortgaged cattle in violation of former law. Howard v. Singleton, 1950-NMSC-067, 55 N.M. 8, 225 P.2d 697.

Removal and concealment after repossession. — Where the evidence showed that the title holder of an automobile had already repossessed it because of defendant's default at the time defendant took it from garage and concealed it, defendant's taking and concealment, without the consent and knowledge of the title holder, would constitute a crime, but not the crime of unlawfully taking, carrying away and concealing personal property possession of which was obtained under a conditional sales contract. State v. Shedoudy, 1944-NMSC-042, 48 N.M. 354, 151 P.2d 57.

Failure to sell repossessed collateral not treated as election under 55-9-505 NMSA 1978. — Where a decrease in inventory constitutes a willful and malicious conversion of collateral and a violation of this section, failing to sell the repossessed collateral will not be treated as an election under 55-9-505 NMSA 1978 to retain the collateral in satisfaction of the obligation. With v. Amador, 596 F.2d 428 (10th Cir. 1979).

Sale of borrowed motorcycle. — Where defendant sold a motorcycle to the complaining witness, subsequently borrowed it back, and then sold it to a third person, he was guilty of embezzlement; this section would have been applicable if the jury had determined that dealings between the defendant and complaining witness amounted to a secured transaction, but jury necessarily determined they did not. State v. Gregg, 1972-NMCA-001, 83 N.M. 397, 492 P.2d 1260, cert. denied, 83 N.M. 562, 494 P.2d 975.

Argument on value improperly refused. — On charge that buyer under a conditional sales contract obtained possession of an automobile of a finance company and unlawfully took, carried away and concealed such automobile of the value of more than $100 while its title was in such finance company and without its consent, it was error to refuse to permit accused's counsel to argue whether such value had been established by the evidence. State v. Shedoudy, 1941-NMSC-044, 45 N.M. 516, 118 P.2d 280.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 15 Am. Jur. 2d Chattel Mortgages §§ 242, 243; 51 Am. Jur. 2d Liens § 60.

Conditional sale, offense of obtaining property by false pretenses predicated upon transaction involving, 134 A.L.R. 874.

Elements and proof of crime of improper sale, removal, concealment, or disposal of property subject to security interest under UCC, 48 A.L.R.4th 819.

77A C.J.S. Sales § 328 et seq.; 79 C.J.S. Secured Transactions, § 111 et seq.