A. The division, with the approval of the committee, may by regulation require each dealer, broker, salesperson, manufacturer, repairman and installer to furnish and maintain with the division a consumer protection bond underwritten by a corporate surety authorized to transact business in New Mexico, in a sum to be determined by regulation and in such form, and with either unit or blanket coverage, as required by regulation, to be conditioned upon the dealer, broker, salesperson, manufacturer, repairman or installer complying with the provisions of the Manufactured Housing Act [Chapter 60, Article 14 NMSA 1978] and any other law applying to the licensee, and also as indemnity for any loss sustained by any person damaged:

(1) as a result of a violation by the licensee of any provision of the Manufactured Housing Act or of any regulation of the division adopted pursuant to that act;

(2) as a result of a violation of any regulation adopted by the division;

(3) by fraud of a licensee in the execution or performance of a contract; or

(4) by misrepresentation or the making of false promises through the advertising or the agents of a licensee.

B. The consumer protection bond may include provisions for the indemnification for any loss sustained by any consumer as the result of the refusal, failure or inability to transfer good and sufficient legal title to the consumer by the transferor or any other party claiming title.

C. The committee may attach and disburse for cause any consumer protection bond furnished to the division pursuant to this section. The division, subject to the approval of the committee, shall adopt the necessary rules and regulations to administer the provisions of this section.

History: 1953 Comp., § 67-41-7, enacted by Laws 1978, ch. 81, § 1; 1983, ch. 295, § 12.

Repeals and reenactments. — Laws 1978, ch. 81, § 1, repealed former 67-41-7, 1953 Comp. (former 60-14-6 NMSA 1978), as amended by Laws 1977, ch. 341, § 3, relating to bonding requirements for dealers, manufacturers and installers, and enacted a new 67-41-7, 1953 Comp. For provisions of former section, see 1978 Original Pamphlet.

Authority of committee. — Since the mobile home dealer and buyer had settled a dispute over return of a deposit through arbitration, the committee was estopped from ordering the dealer to return the deposit to the buyer based on the dealer's violation of a division regulation providing a time limit for return of deposits; the committee was only entitled to attach the dealer's consumer protection bond to the extent the buyer was damaged by delay in return of the deposit and require return of that amount; in addition, the committee could suspend the dealer's license for a violation of the regulation, but could not condition staying the suspension on return of the total deposit. Rex, Inc. v. Manufactured Hous. Comm., 1995-NMSC-023, 119 N.M. 500, 892 P.2d 947.

Elements to be proved at proceeding to attach bond pursuant to the Manufactured Housing Act are (1) the existence of the bond; (2) losses sustained by the consumer; and (3) the losses occurring by reason of misrepresentation. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 81 P.3d 470.

Collateral estoppel applied in committee hearing on attachment of bond. Where the purpose of a manufactured housing committee hearing was not to investigate consumers' complaints, but to determine whether the committee could attach the manufacturer's consumer protection bond and disburse it to consumers in partial payment of a judgment recovered in an Unfair Practices Act action, the committee was in privity with the consumers in the UPA action, and the doctrine of collateral estoppel applied on the issues of misrepresentation and loss by the consumers. Rex, Inc. v. Manufactured Hous. Comm., 2003-NMCA-134, 134 N.M. 533, 81 P.3d 470.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 58 Am. Jur. 2d Occupations, Trades and Professions § 7.