(1) Whether the lessor or the lessee is in default under a lease contract is determined by the lease agreement and this article.

(2) If the lessor or the lessee is in default under the lease contract, the party seeking enforcement has rights and remedies as provided in this article and, except as limited by this article, as provided in the lease agreement.

(3) If the lessor or the lessee is in default under the lease contract, the party seeking enforcement may reduce the party's claim to judgment, or otherwise enforce the lease contract by self-help or any available judicial procedure or nonjudicial procedure, including administrative proceeding, arbitration or the like, in accordance with this article.

(4) Except as otherwise provided in Subsection (a) of Section 55-1-305 NMSA 1978 or this article or the lease agreement, the rights and remedies referred to in Subsections (2) and (3) of this section are cumulative.

(5) If the lease agreement covers both real property and goods, the party seeking enforcement may proceed under this part as to the goods, or under other applicable law as to both the real property and the goods in accordance with that party's rights and remedies in respect of the real property, in which case this part does not apply.

History: 1978 Comp., § 55-2A-501, enacted by Laws 1992, ch. 114, § 56; 2005, ch. 144, § 38.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

Uniform Statutory Source. — Former Section 9-501 [55-9-501 NMSA 1978] (now codified as Section 9-601 [55-9-601 NMSA 1978]).

Changes: — Substantially revised.

1. Subsection (1) is new and represents a departure from the Article on Secured Transactions (Article 9) as the subsection makes clear that whether a party to the lease agreement is in default is determined by this Article as well as the agreement. Sections 2A-508 and 2A-523 [55-2A-508 and 55-2A-523 NMSA 1978, respectively]. It further departs from Article 9 in recognizing the potential default of either party, a function of the bilateral nature of the obligations between the parties to the lease contract.

2. Subsection (2) is a version of the first sentence of Section 9-601(a) [55-9-601(a) NMSA 1978], revised to reflect leasing terminology.

3. Subsection (3), an expansive version of the second sentence of Section 9-601(a) [55-9-601(a) NMSA 1978], lists the procedures that may be followed by the party seeking enforcement; in effect, the scope of the procedures listed in Subsection (3) is consistent with the scope of the procedures available to the foreclosing secured party.

4. Subsection (4) establishes that the parties' rights and remedies are cumulative. DeKoven, Leases of Equipment: Puritan Leasing Company v. August, A Dangerous Decision, 12 U.S.F.L.Rev. 257, 276-80 (1978). Cumulation, and largely unrestricted selection, of remedies is allowed in furtherance of the general policy of the Commercial Code, stated in Section 1-305 [55-1-305 NMSA 1978], that remedies be liberally administered to put the aggrieved party in as good a position as if the other party had fully performed. Therefore, cumulation of, or selection among, remedies is available to the extent necessary to put the aggrieved party in as good a position as it would have been in had there been full performance. However, cumulation of, or selection among, remedies is not available to the extent that the cumulation or selection would put the aggrieved party in a better position than it would have been in had there been full performance by the other party.

5. Section 9-602 [55-9-602 NMSA 1978], which, among other things, states that certain rules, to the extent they give rights to the debtor and impose duties on the secured party, may not be waived or varied, is not incorporated in this Article. Given the significance of freedom of contract in the development of the common law as it applies to bailments for hire and the lessee's lack of an equity of redemption, there is no reason to impose that restraint.

Cross References. — Sections 1-305, 2A-508, 2A-523 [55-1-305, 55-2A-508, 55-2A-523 NMSA 1978, respectively], Article 9, especially Sections 9-601 and 9-602 [55-9-601 and 55-9-602 NMSA 1978].

"Goods". Section 2A-103(1)(h) [55-2A-103 NMSA 1978].

"Lease agreement". Section 2A-103(1)(k) [55-2A-103 NMSA 1978].

"Lease contract". Section 2A-103(1)(l) [55-2A-103 NMSA 1978].

"Lessee". Section 2A-103(1)(n) [55-2A-103 NMSA 1978].

"Lessor". Section 2A-103(1)(p) [55-2A-103 NMSA 1978].

"Party". Section 1-201(b)(26) [55-1-201(b)(26) NMSA 1978].

"Remedy". Section 1-201(b)(32) [55-1-201(b)(32) NMSA 1978].

"Rights". Section 1-201(b)(34) [55-1-201(b)(34) NMSA 1978].

The 2005 amendment, effective January 1, 2006, changed the statutory reference in Subsection (5) from Subsection (1) of Section 55-1-106 NMSA 1978 to Subsection (a) of Section 55-1-305 NMSA 1978.