“Even if you
are on the right track, you’ll get run over if you just sit there.”
Will Rogers (1879-1935)
The
legislature will adjourn on February 20.
As of the date of this Blog it is not certain if the House, Senate and
Governor can reach agreement on the budget in the remaining time left. If not, there will be a special session.
A disturbing
trend has surfaced as the Democrat majority in the Senate seeks to avoid
Governor Martinez’ veto. Using the
Senate Joint Resolution route to propose a constitutional amendment, Senator
Sanchez has proposed a maximum legal interest rate of 36% on loans other than
bank loans. One Senator tried to get legalized marijuana as a constitutional
amendment—that failed. If the trend
continues, the New Mexico Constitution will look like that of a third world
country[1]· in which everything from parking
violations to routine statutory provisions are dealt with. Some legislators are concerned and are moving
to require a two-thirds vote in each
chamber to propose constitutional amendments.
We have been
spared the mortgage foreclosure bills that crop up in the regular session with
their mandatory mediation and extended default cure provisions. Instead, two memorials (HM 15 and SM11) have
been introduced under the banner of the United South Broadway Corporation, an
activist community organization, to form a “task force” to study the
foreclosure process and “restore” due process to those threatened with
foreclosure. The memorials with 15 detailed
“Whereas” clauses setting forth the sins of the banks that have settled
government claims of poor or unlawful practices, then calls for the task force
to be convened to solve the problem. The
suggested participants are community organizations from around the state, the
Independent Community Bankers Association or mortgage association, MFA, citizens
suffering from foreclosure, clergy, retired judge, etc. I know that the Independent Community Bankers
Association has resisted being dragooned into the task force. I suspect the other business associations
have similar concerns. Although a House or
Senate Memorial does not have the force of law, one can see the “task force”
proposing sweeping changes to foreclosure proceedings as banks try to cope with
the burden of new mortgage rules from the federal government.
The Data
Breach Notification Act (HB 224), a product of the Attorney General’s consumer
protection division, is winding its way through the legislature, having
received a “do pass” from the House Consumer and Public Affairs Committee. A substitute bill has removed much of the
mischief of the bill for banks, since it appears to exempt banks subject to
Gramm-Leach-BlileyAct. It is poorly
drafted and for major credit card issuers still has some dangers. Most alarming, three sections of HB 224 apply
to any “person” who has “personal identity information”, which is basically the
information most businesses may collect in any credit or lease
transaction. The term “person” is not
defined. And under the proposed
legislation, the “person” who has “personal identify information”, must
institute safeguards, have security procedures and disposal policies with
respect to the material. Thus, by
accident (I think) auto dealers, hospitals, medical providers, and any business
that collects social security numbers, birth dates, addresses, etc. is subject to
the “Act” and faces Attorney General investigation and litigation.
HB 249
affects all banks. It amends the tax
levy provisions of the taxation code to permit service of levies on banks by
“electronic” means. This is not a
foreign concept since many banks now store electronic customer information and
agreements electronically. A document
stored under the federal or New Mexico electronic authentication statutes is as
valid as the original. Electronic documents are used in court. [2]
So what is the effect of HB 224? Simply
put, instead of Sheriff or other authorized official physically serving your
bank branch, it can be done in the same form by electronic means. Failure to honor a levy may subject the bank
to penalty. The only concern is that the
banks institute procedures to cope with this new method of service (if it
survives the session).
Boring? Sorry.
Do good.
Marshall G.
Martin
(505)228
8506
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