(a) If a person that files a written record requests an acknowledgment of the filing, the secretary of state shall send to the person an image of the record showing the number assigned to the record pursuant to Paragraph (1) of Subsection (a) of Section 55-9-519 NMSA 1978 and the date and time of the filing of the record. However, if the person furnishes a copy of the record to the filing office, the filing office may instead:

(1) note upon the copy the number assigned to the record pursuant to Paragraph (1) of Subsection (a) of Section 55-9-519 NMSA 1978 and the date and time of the filing of the record; and

(2) send the copy to the person.

(b) The secretary of state shall make available to the general public records indexed both by the names of debtors and by unique file numbers, based upon which copies may be obtained.

(c) In complying with its duty under Subsection (b) of this section, the secretary of state may communicate information in any medium. However, if requested, the filing office shall communicate information by issuing its written certificate.

(d) If a person files a record other than a written record that is communicated by a method or medium of communication authorized by the filing office, the filing office shall communicate to the person an acknowledgment that provides:

(1) the information in the record;

(2) the number assigned to the record pursuant to Paragraph (1) of Subsection (a) of Section 55-9-519 NMSA 1978; and

(3) the date and time of the filing of the record.

(e) The secretary of state shall perform the action required by Subsections (a) through (d) of this section at the time and in the manner prescribed by filing-office rule, but not later than three business days after the filing office receives the request.

History: 1978 Comp., § 55-9-523, enacted by Laws 2001, ch. 139, § 94.

OFFICIAL COMMENTS

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

1. Source. Former section 9-407; subsections (d) and (e) are new.

2. Filing Office's Duty to Provide Information. Former section 9-407, dealing with obtaining information from the filing office, was bracketed to suggest to legislatures that its enactment was optional. Experience has shown that the method by which interested persons can obtain information concerning the public records should be uniform. Accordingly, the analogous provisions of this article are not in brackets.

Most of the other changes from former section 9-407 are for clarification, to embrace medium-neutral drafting, or to impose standards of performance on the filing office.

3. Acknowledgments of Filing. Subsections (a) and (b) require the filing office to acknowledge the filing of a record. Under subsection (a), the filing office is required to acknowledge the filing of a written record only upon request of the filer. Subsection (b) requires the filing office to acknowledge the filing of a non-written record even in the absence of a request from the filer.

4. Response to Search Request. Subsection (c)(3) requires the filing office to provide "the information contained in each financing statement" to a person who requests it. This requirement can be satisfied by providing copies, images, or reports. The requirement does not in any manner inhibit the filing office from also offering to provide less than all of the information (presumably for a lower fee) to a person who asks for less. Thus, subsection (c) accommodates the practice of providing only the type of record (e.g., initial financing statement, continuation statement), number assigned to the record, date and time of filing, and names and addresses of the debtor and secured party when a requesting person asks for no more (i.e., when the person does not ask for copies of financing statements). In contrast, the filing office's obligation under subsection (b) to provide an acknowledgment containing "the information contained in the record" is not defined by a customer's request. Thus unless the filer stipulates otherwise, to comply with subsection (b) the filing office's acknowledgment must contain all of the information in a record.

Subsection (c) assures that a minimum amount of information about filed records will be available to the public. It does not preclude a filing office from offering additional services.

5. Lapsed and Terminated Financing Statements. This section reflects the policy that terminated financing statements will remain part of the filing office's data base. The filing office may remove from the data base only lapsed financing statements, and then only when at least a year has passed after lapse. See section 9-519(g). Subsection (c)(1)(C) requires a filing office to conduct a search and report as to lapsed financing statements that have not been removed from the data base, when requested.

6. Search by Debtor's Address. Subsection (c)(1)(A) contemplates that, by making a single request, a searcher will receive the results of a search of the entire public record maintained by any given filing office. Addition of the bracketed language in subsection (c)(1)(A) would permit a search report limited to financing statements showing a particular address for the debtor, but only if the search request is so limited. With or without the bracketed language, this subsection does not permit the filing office to compel a searcher to limit a request by address.

7. Medium of Communication; Certificates. Former article 9 provided that the filing office respond to a request for information by providing a certificate. The principle of medium-neutrality would suggest that the statute not require a written certificate. Subsection (d) follows this principle by permitting the filing office to respond by communicating "in any medium." By permitting communication "in any medium," subsection (d) is not inconsistent with a system in which persons other than filing office staff conduct searches of the filing office's (computer) records.

Some searchers find it necessary to introduce the results of their search into evidence. Because official written certificates might be introduced into evidence more easily than official communications in another medium, subsection (d) affords states the option of requiring the filing office to issue written certificates upon request. The alternative bracketed language in subsection (d) recognizes that some states may prefer to permit the filing office to respond in another medium, as long as the response can be admitted into evidence in the courts of that state without extrinsic evidence of its authenticity.

8. Performance Standard. The utility of the filing system depends on the ability of searchers to get current information quickly. Accordingly, subsection (e) requires that the filing office respond to a request for information no later than two business days after it receives the request. The information contained in the response must be current as of a date no earlier than three business days before the filing office receives the request. See subsection (c)(1). The failure of the filing office to comply with performance standards, such as subsection (e), has no effect on the private rights of persons affected by the filing of records.

9. Sales of Records in Bulk. Subsection (f), which is new, mandates that the appropriate official or the filing office sell or license the filing records to the public in bulk, on a nonexclusive basis, in every medium available to the filing office. The details of implementation are left to filing-office rules.

Effective dates. — Laws 2001, ch. 139, § 155 makes the act effective July 1, 2001.

Decisions under former Section 55-9-407 NMSA 1978. — In light of the similarity of this section and former Section 55-9-407 NMSA 1978, annotations decided under former Section 55-9-407 NMSA 1978 have been included in the annotations in this section.

Copy of filed information. — A secured party does not have a duty to retain a copy of what was filed: This section requires the noting of filing information on a copy only upon the request of the person filing and is inconsistent with any such duty. Greeman Motors, Inc. v. United N.M. Bank, 48 B.R. 611 (Bankr. D.N.M. 1985) (decided under former law).