Misrepresentation of Age & Condition of Motor Vehicles August 2014

OFFICE OF THE NEW MEXICO ATTORNEY GENERAL

NOTICE OF PROPOSED AMENDED RULE

The Attorney General is proposing to amend 12.2.14 NMAC, regarding the misrepresentation of the age and condition of motor vehicles. The rule is being amended by the authority vested in the Attorney General pursuant to the New Mexico Unfair Practices Act, NMSA 1978, Section 57-12-13 (1967).  The notice and rule will be published in the August 29, 2014, New Mexico Register.

The proposed amended rule is available at the Office of the Attorney General located in the Paul Bardacke Attorney General Complex in Santa Fe located at 408 Galisteo Street, Consumer Protection Division; at the Attorney General’s Office located in Albuquerque at 111 Lomas Blvd. NW, Suite 120; and in Las Cruces at 201 North Church Street, Suite 315.

The proposed amended rule is also posted on the Office of the Attorney General’s website and may be accessed, free of charge, from the following website: www.nmag.gov.

To request that a copy of the proposed amended rule be mailed to you, please submit your request in writing to:

 

Office of the Attorney General

Consumer Protection Division

Attention: Lori Chavez

P.O. Drawer 1508

Santa Fe, NM 87504-1508

 

You may also request a copy of the proposed amended rule by calling the following telephone number:

1-800-678-1508.  There is a $.25 copying charge per page for written and telephone requests for copies of the proposed amended rule.

You may also request a copy of the proposed amended rule by emailing: lchavez@nmag.gov, subject line: “12.2.14 Amended Rule.”

Any person who is or may be affected by this proposed amended rule may submit written comments.

Written comments concerning the proposed amended rule may be submitted by mail to:

 

Office of the Attorney General

Consumer Protection Division

Attention:  Lori Chavez

P.O. Drawer 1508

Santa Fe, NM 87504-1508

 

The Office of the New Mexico Attorney General will accept written comments for consideration provided on or before September 29, 2014.

__________________________________________________________________________________________________

Edited Version

The Attorney General initiates this rulemaking to amend certain provisions of 12.2.14 NMAC, which governs compliance with the 6% affidavit requirement set forth in NMSA 1978, Section 57-12-6.

This is an amendment to 12.2.14 NMSA, Sections 6 through 11, effective December 15, 2014.

TITLE 12            TRADE, COMMERCE AND BANKING

CHAPTER 2            CONSUMER PROTECTION

PART 14            MISREPRESENTATION OF AGE AND CONDITION OF MOTOR VEHICLES

 

12.2.14.1            ISSUING AGENCY:  Office of the New Mexico Attorney General.

[12.2.14.1 NMAC - N, 4/1/2014]

 

12.2.14.2            SCOPE:  Misrepresentation of age and condition of motor vehicles.

[12.2.14.2 NMAC - N, 4/1/2014]

 

12.2.14.3            STATUTORY AUTHORITY:  The New Mexico Unfair Practices Act, NMSA 1978, Section 57-12-13.

[12.2.14.3 NMAC - N, 4/1/2014]

 

12.2.14.4            DURATION:  Permanent.

[12.2.14.4 NMAC - N, 4/1/2014]

 

12.2.14.5            EFFECTIVE DATE:  April 1, 2014, unless a later date is cited at the end of a section.

[12.2.14.5 NMAC - N, 4/1/2014]

 

12.2.14.6            OBJECTIVE:

            A.            The purpose of this rule is to:

                    (1)     deter the misrepresentation of the age or condition of a motor vehicle in motor vehicle sale transactions;

                    (2)     protect retail buyers from unfair and deceptive trade practices involving the misrepresentation of the age or condition of a motor vehicle in motor vehicle sale transactions through uniform disclosure of material information concerning the age or condition of a motor vehicle. NMSA 1978, Section 57-12-2(D) [(14)]; and

                    (3)     provide [to] sellers clear legal standards as to what constitutes “to the best of seller’s knowledge” when selling motor vehicles to retail buyers. NMSA 1978, Section 57-12-6(B)(2).

            B.            The attorney general’s office has long been concerned about unfair and deceptive trade practices involving the sale of motor vehicles to retail buyers.  The attorney general’s consumer protection division receives numerous written complaints and telephone calls alleging failure by sellers to (1) disclose material information concerning the age or condition of motor vehicles or (2) provide the mandatory affidavit.  Sellers of motor vehicles have continually complained to the attorney general’s office about the ambiguity of the affidavit requirement and over the years have been subject to litigation by retail buyers concerning the enforcement of the statutory provision [interpretation of] “to the best of the seller’s knowledge”.  NMSA 1978, Section 57-12-6(B)(2).

            C.            These rules are not intended to restrict or limit claims to NMSA 1978, Section 57-12-6 that may be alleged [This rule interprets and clarifies unfair and deceptive trade practices involving the sale of motor vehicles as provided] under other provisions of the Unfair Practices Act, NMSA 1978, Section 57-12-1 et seq.

D.            The attorney general has concluded that this rule is in the best interest of the health, safety and general welfare of the citizens of New Mexico.

[12.2.14.6 NMAC - N, 4/1/2014; A, 12/15/2014]

 

12.2.14.7            DEFINITIONS:

            A.            “Alteration” shall mean:

                    (1)     the act or procedure of changing, modifying or repairing a motor vehicle’s cab, chassis or body;

                    (2)     the condition resulting from changing, modifying or repairing a motor vehicle’s cab, chassis or body; or

                    (3)     the modification to a motor vehicle’s cab, chassis, or body; the alteration may, but need not necessarily, be the result of wreck damage.  Goods are altered if, as measured against the reasonable expectations of the consumer, the characteristics or value of the motor vehicle are affected in a meaningful way by the changes, modifications or repairs.  See Hale v. Basin Motor Co., 110 N.M. 314, 317-318 (N.M. 1990).

            B.            “Body” shall mean the external structure of the motor vehicle, exclusive of the cab and chassis.

            C.            “Cab” shall mean the compartment of a motor vehicle where the driver and passengers sit.

            D.            “Calculation of cost for alteration or repair” shall mean calculating the cost of repair based upon industry accepted reverse engineering protocols and original equipment manufacturer “OEM” replacement parts.

            E.            “Chassis” shall mean frame and working parts of the motor vehicle, including standard factory equipment.

            F.            “Flat rate manual cost” shall mean the estimated cost of repair as indicated by a nationally recognized manual commonly used in the industry of auto repair.

            G.            “Inspection” or “reasonable inspection” shall mean the investigation of the age and condition [inspection] of the motor vehicle for any type of alteration or repair [not consistent with I-CAR repair standards or equivalent industry standards for alteration or repair].  Inspections shall be conducted with reasonable care consistent with 12.2.14.9 NMAC.

            H.            “Inspection report” shall mean the inspection report provided for in 12.2.14.1011 NMAC of this rule or equivalent form. [The inspection form shall include:

                    (1)     the name of the seller and contact information;

                    (2)     a description of the vehicle, including year, make, model, stock number and vehicle identification number;

                    (3)     the vehicle condition report required by 12.2.14.9 NMAC of this rule;

                    (4)     the odometer reading of the motor vehicle;

                    (5)     a statement of the calculation and total cost for alteration or repair;

                    (6)     a statement as to whether or not the alteration or  repair causes safety issues;

                    (7)     a statement as to whether or not the motor vehicle has frame damage;

                    (8)     the identification and contact information of the qualified person who performed the inspection;

                    (9)     the inspection date and the calculation and total cost for the motor vehicle inspection.

            I.            “Motor vehicle” shall mean every vehicle that is self-propelled and every vehicle that is propelled by electric power obtained from batteries or from overhead trolley wires, but not operated upon rails.   This includes, but is not limited to, automobiles, trucks of all varieties, motor cycles, recreational vehicles, reconstructed motor vehicles, specially constructed motor vehicles, and road tractors, all of which may be for personal, household, or commercial use.]

            I [J].            “Qualified person” shall mean either:

                     (1)     a person who is ASE, I-CAR level II or qualified by any other equivalent industry recognized [certification] program, and has adequate experience with performing vehicle repairs in the areas of:

                              (a)     painting and refinishing;

                              (b)     structural and non-structural analysis and repair;

                              (c)     mechanical and electrical components analysis and repair of motor vehicle cab, chassis, and body;

                              (d)     inspection of vehicles for previous alteration or repair; or

                    (2)     a person who possesses equivalent or similar knowledge, skills and experience [as defined in this subsection].

            [K] J.            “Repair or repairing” shall mean to restore or attempt to‑ restore to [I-CAR standards or equivalent] industry standards a motor vehicle’s cab, chassis, or body whether or not the damage resulted from a collision.

            [L] K.            “Sales price” shall mean the actual stated price on the contract before the deduction of the value of any trade-in and shall not include such charges as taxes, registration fees, extended warranties, service contracts, credit of disability insurance, or any other charges incidental to the sale.

            [M] L.            “Seller” shall mean natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates which include either:

                    (1)     any person who sells, solicits or advertises the sale of [new or used] motor vehicles to retail buyers and who is licensed pursuant to the Motor Vehicle Code,  NMSA 1978, Section 66-4-1(A); or

                    (2)     any person who sells four or more motor vehicles to retail buyers in a calendar year whether licensed to do so or not pursuant to NMSA 1978, Section 66-4-1(A).

            [N.            “Seller’s knowledge” shall mean “to the best of the seller’s knowledge” pursuant to NMSA 1978, Section 57-12-6(B)(2) and does not necessarily mean actual knowledge, but shall mean knowledge that a prudent person would have if the person had exercised reasonable care or diligence.  One who intentionally remains ignorant is chargeable in law with knowledge.  See Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100 (N.M. 1991).]

            [O] M.            “Unibody” shall mean a motor vehicle construction technique in which the body is integrated into a single unit with the chassis rather than having a separate body-on-frame.

[12.2.14.7 NMAC - N, 4/1/2014; A, 12/15/2014]

 

12.2.14.8            TO THE BEST OF THE SELLER’S KNOWLEDGE:

A.            [AFFIDAVIT REQUIRED:  It is an unfair or deceptive trade practice for a] A seller of a motor vehicle shall furnish [to fail to provide the purchaser with an affidavit] at the time of sale of a  [if it has been determined that the alterations or repairs to any part of the] motor vehicle an affidavit that states [for which the fixed flat rate manual costs in the aggregate amounts to or exceeds six percent or of the sale price of the vehicle.  The affidavit must:

            A.            describe the vehicle; and

            B.            state,] to the best of the seller’s knowledge [, what specific alterations or repairs have been done to the motor vehicle, including] whether there has been an alteration or chassis repair due to wreck damage, except where not required.  NMSA 1978, Section 57-12-6(B). [the motor vehicle title should have been branded salvage or has been branded salvaged.]

            B.            “Knowledge” does not necessarily mean “actual knowledge,” but means knowledge of such circumstances as would ordinarily lead upon investigation, in the exercise of reasonable diligence which a prudent man ought to exercise, to a knowledge of the actual facts.  One who intentionally remains ignorant is chargeable in law with knowledge.  Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100 (N.M. 1991) (citing Taylor v. Hanchett Oil Co., 37 N.M. 606, 609 (N.M. 1933)).

[[12.2.14.8 NMAC - N, 4/1/2014]

 

12.2.14.9            UNFAIR AND DECEPTIVE TRADE PRACTICE:  It is an unfair or deceptive trade practice for a]

            C.            A seller of a motor vehicle shall be deemed to meet the obligation of “to the best of the seller’s knowledge” when the seller conducts a reasonable motor vehicle [to:

            A.            fail to obtain a reasonable] inspection that substantially complies [of the motor vehicle performed by a qualified person, prior to offering the motor vehicle for retail sale, in order to comply with the affidavit requirements of the Unfair Practices Act NMSA, 1978, Section 57-12-6 (B);]

with 12.2.14.9 and the seller completes            

[            B.            fail to obtain] an inspection report pursuant to 12.2.14.10 NMAC.  The seller shall maintain the [;

            C.            fail to provide to the retail buyer, prior to the sale, with a copy of the] inspection report for three years and make [any other reports obtained by the seller in connection to the inspection of the motor vehicle;

            D.            omit any information required to be disclosed on] the inspection report available to the buyer upon request.;

            D.            When a seller determines that an affidavit is required pursuant to NMSA 1978, Section 57-12-6(B), the seller shall attach to the Affidavit a copy of the written inspection report disclosing the prior alteration or chassis repair due to wreck damage in a form that substantially complies with 12.2.14.10 NMAC.

[            E.            state]

            E.            A seller shall not represent to the buyer that the absence of any indication of an accident on a carfax, autocheck or other vehicle history report is proof that the motor vehicle has never been altered or repaired;

            F.            When a seller determines that an affidavit [fail to disclose in writing the specific alteration(s ) or repair(s) performed to the motor vehicle if the alteration(s) or repair(s) to any part of the motor vehicle amounts to six percent or more of the sales price of the motor vehicle, based on the flat rate manual costs in the aggregate;

            G.            fail to disclose in writing, if to the best of the seller’s knowledge, the motor vehicle title should have been branded salvage or has been branded salvaged, if the motor vehicle] is required [defined by law as salvaged] pursuant to NMSA 1978, Section 57-12-6(B), [66-1-4.16(C) or 18.19.3.50 NMAC through 18.19.3.52 NMAC;

            H.            fail to include the itemized cost for the inspection on the sales agreement as required by this rule;

            I.            charge the retail buyer for the inspection an amount above the actual amount paid by the seller for the inspection; or

            J.            fail to retain] a copy of the Affidavit shall be maintained by the seller [any and all motor vehicle reports and inspection reports] for three years. [after the sale of the motor vehicle]

[12.2.14.9 NMAC - N, 4/1/2014; A, Rn, 12.2.14.8 NMAC 12/15/2014]

 

[12.2.14.10] 12.2.14.9            REASONABLE INSPECTION:  The following motor vehicle inspection shall be conducted by qualified persons and shall be deemed reasonable pursuant to NMSA 1978, Section 57-12-6(B) by:

            A.            obtaining publically available reports on the age or condition of the motor vehicle such as the national motor vehicle title information system report, carfax, or auto check;

            B.            inspecting the motor vehicle for evidence of repainting such as:

                    (1)     differences in paint color or texture;

                    (2)     mismatched sizes of metallic sparkle in the paint;

                    (3)     embedded dirt or deep scratches in the top coat of the paint; and

                    (4)     uneven paint thickness;

            C.            inspecting the motor vehicle [body and cab] for evidence of any repair or alteration, with the inspection involving only minimal disassembly, for:

                    (1)     uneven gaps between sheet metal panels;

                    (2)     differences between the headlamps;

                    (3)     paint overspray on moldings and trim;

                    (4)     paint tape edges in the jams;

                    (5)     paint chipped off of bolt heads;

                    (6)     paint missing around bolt heads or bolts not centered in the bolt hole;

                    (7)     hammer damage;

                    (8)     holes drilled and plugged in jams or shell of the motor vehicle;

                    (9)     damage inside the trunk or under the spare tire; and

                    (10)     signs of corrosion or lack of corrosion protection;

            D.            inspecting the motor vehicle chassis for evidence of such things as:

                    (1)     pinched weld flange underneath the motor vehicle;

                    (2)     weld sites;

                    (3)     signs of repair to unibody structural parts;

                    (4)     signs of buckles or non-OEM welding repair to unibody structural parts;

                    (5)     signs of corrosion or lack of corrosion protection;

                    (6)     any other alteration or repair that may have been performed to the chassis; [and

                    (7)     odometer alteration or repair;]

            E.            inspecting the motor vehicle’s caulking and seam sealer for differences and inconsistencies;

            F.            inspecting the motor vehicle’s identification number tags;

            G.            inspecting the motor vehicle parts for labels that say “R-DOT”;

            H.            inspecting the motor vehicle for any type of repairs not consistent with [I-CAR]repair standards; and [or equivalent]

            I.            [based] upon any information or evidence obtained during the motor vehicle inspection performed pursuant to Subsections A-H of this section, [perform] performing any additional inquiry or inspection into the motor vehicle’s age or condition appropriate to assure compliance with this rule.

[12.2.14.10 NMAC - N, 4/1/2014; A, Rn, 12.2.14.9 NMAC, 12/15/2014]

 

[12.2.14.11] 12.2.14.10            PREVIOUS WRECK DAMAGE OR ALTERATION INSPECTION REPORT:  The following information [is an example of what] should be contained within an inspection report [form]:

            A.            seller’s name;

            B.            dealer license number;

            C.            address, including city, state, and zip code;

            D.            the year, make, model, and stock number of the motor vehicle;

            E.            the motor vehicle identification number;

            F.            the exterior and interior color of the motor vehicle;

            G.            an odometer reading of the motor vehicle; [, including actual miles, and not actual miles]

            H.            a calculation of the total cost for alteration or repair;

            I.            a “yes” and “no” check box should be used to indicate any inspection revealed frame damage [safety issues]; if “yes” is checked, then the inspection report shall identify the frame damage [safety issues] with particularity;

            J.            [a “yes” and “no” check box should be used to indicate any inspection revealed frame damage; if “yes” is checked, then the inspection report shall identify the frame damage with particularity;

            K.]            the remainder of the inspection report [form] should be captioned “AGE AND CONDITION OF MOTOR VEHICLE [CERTIFICATION]”;

            [L] K.            for the following paragraphs and subparagraphs of this subsection, a “yes” and “no” check box should be checked for each item which is applicable; if “yes” is checked, then the report shall identify the alteration or repair with particularity and where on the vehicle the alteration or repair is located:

                    (1)     inspection of the motor vehicle for evidence of repainting;

                              (a)     differences in paint color or texture;

                              (b)     mismatched sizes of metallic sparkle in the paint;

                              (c)     embedded dirt or deep scratches in the top coat of the paint;

                              (d)     uneven paint thickness;

                    (2)     inspection of the motor vehicle [body and cab];

                              (a)     uneven gaps between sheet metal panels;

                              (b)     differences between the headlamps;

                              (c)     paint overspray on moldings and trim;

                              (d)     paint tape edges in the jams;

                              (e)     paint chipped off of bolt heads;

                              (f)     paint missing around bolt heads or bolts not centered in the bolt hole;

                              (g)     hammer damage;

                              (h)     holes drilled and plugged in jams or shell of the motor vehicle;

                              (i)     damage inside the trunk or under the spare tire;

                              (j)     signs of corrosion or lack of corrosion protection;

                    (3)     inspection of the motor vehicle chassis;

                              (a)     pinched weld flange underneath the motor vehicle;

                              (b)     weld sites;

                              (c)     signs of repair to unibody structural parts;

                              (d)     signs of buckles or  non-OEM welding repair to the unibody structural parts;

                              (e)     signs of corrosion or lack of corrosion protection;

                              (f)     signs of any other alteration or repair having been performed to the chassis;

[                             (g)     odometer alteration or repair;]

                    (4)     signs of differences and inconsistencies with the motor vehicle’s caulking and seam sealer;

                    (5)     signs of tampering with motor vehicle’s identification tags;

                    (6)     signs of motor vehicle parts labeled “R-DOT”;

                    (7)     signs of any type of repairs not consistent with [I-CAR] collision repair standards or equivalent;

            [M] L.            date of inspection;

            [N] M.            calculation and total cost for inspection;

            [O] N.            the name of the business or individual who conducted the inspection;

            [P] O.            the name, and address of the business or individual who conducted the inspection, including city, state, and zip code;

            [Q] P.            the telephone number of the business or individual who conducted the inspection;

            [R] Q.            the printed or typed name of the technician who conducted the inspection; and

            [S] R.            the signature of the technician who conducted the inspection.

[12.2.14.11 NMAC - N, 4/1/2014; A, Rn, 12.2.14.10 NMAC, 12/15/2014]

 

[12.2.14.12] 12.2.14.11            SEVERABILITY:  If any part of this rule is held invalid, the remainder of the rule and applications thereof shall remain unaffected.

[12.2.14.12 NMAC - N, 4/1/2014; Rn, 12.2.14.11 NMAC, 12/15/2014]

 

HISTORY OF [12.2.14.13] 12.2.14.12 NMAC:  [RESERVED]

________________________________________________________________________________________

Clean Version

The Attorney General initiates this rulemaking to amend certain provisions of 12.2.14 NMAC, which governs compliance with the 6% affidavit requirement set forth in NMSA 1978, Section 57-12-6.

This is an amendment to 12.2.14 NMSA, Sections 6 through 11, effective December 15, 2014.

TITLE 12 TRADE, COMMERCE AND BANKING

CHAPTER 2 CONSUMER PROTECTION

PART 14 MISREPRESENTATION OF AGE AND CONDITION OF MOTOR VEHICLES

 

12.2.14.1 ISSUING AGENCY:  Office of the New Mexico Attorney General.

[12.2.14.1 NMAC - N, 4/1/2014]

 

12.2.14.2 SCOPE:  Misrepresentation of age and condition of motor vehicles.

[12.2.14.2 NMAC - N, 4/1/2014]

 

12.2.14.3 STATUTORY AUTHORITY:  The New Mexico Unfair Practices Act, NMSA 1978, Section 57-12-13.

[12.2.14.3 NMAC - N, 4/1/2014]

 

12.2.14.4 DURATION:  Permanent.

[12.2.14.4 NMAC - N, 4/1/2014]

 

12.2.14.5 EFFECTIVE DATE: April 1, 2014, unless a later date is cited at the end of a section.

[12.2.14.5 NMAC - N, 4/1/2014]

 

12.2.14.6 OBJECTIVE:

A. The purpose of this rule is to:

                    (1)     deter the misrepresentation of the age or condition of a motor vehicle in motor vehicle sale transactions;

                    (2)     protect retail buyers from unfair and deceptive trade practices involving the misrepresentation of the age or condition of a motor vehicle in motor vehicle sale transactions through uniform disclosure of material information concerning the age or condition of a motor vehicle. NMSA 1978, Section 57-12-2(D); and

                    (3)     provide sellers clear legal standards as to what constitutes “to the best of seller’s knowledge” when selling motor vehicles to retail buyers. NMSA 1978, Section 57-12-6(B)(2).

B. The attorney general’s office has long been concerned about unfair and deceptive trade practices involving the sale of motor vehicles to retail buyers.  The attorney general’s consumer protection division receives numerous written complaints and telephone calls alleging failure by sellers to (1) disclose material information concerning the age or condition of motor vehicles or (2) provide the mandatory affidavit.  Sellers of motor vehicles have continually complained to the attorney general’s office about the ambiguity of the affidavit requirement and over the years have been subject to litigation by retail buyers concerning the enforcement of the statutory provision “to the best of the seller’s knowledge”.  NMSA 1978, Section 57-12-6(B)(2).

C. These rules are not intended to restrict or limit claims to NMSA 1978, Section 57-12-6 that may be alleged under other provisions of the Unfair Practices Act,  NMSA 1978, Section 57-12-1 et seq.

D. The attorney general has concluded that this rule is in the best interest of the health, safety and general welfare of the citizens of New Mexico.

[12.2.14.6 NMAC - N, 4/1/2014; A, 1/1/2015]

 

12.2.14.7 DEFINITIONS:

A. “Alteration” shall mean:

                    (1)     the act or procedure of changing, modifying or repairing a motor vehicle’s cab, chassis or body;

                    (2)     the condition resulting from changing, modifying or repairing a motor vehicle’s cab, chassis or body; or

                    (3)     the modification to a motor vehicle’s cab, chassis, or body; the alteration may, but need not necessarily, be the result of wreck damage.  Goods are altered if, as measured against the reasonable expectations of the consumer, the characteristics or value of the motor vehicle are affected in a meaningful way by the changes, modifications or repairs.  See Hale v. Basin Motor Co., 110 N.M. 314, 317-318 (N.M. 1990).

B. “Body” shall mean the external structure of the motor vehicle, exclusive of the cab and chassis.

C. “Cab” shall mean the compartment of a motor vehicle where the driver and passengers sit.

D. “Calculation of cost for alteration or repair” shall mean calculating the cost of repair based upon industry accepted reverse engineering protocols and original equipment manufacturer “OEM” replacement parts.

E. “Chassis” shall mean frame and working parts of the motor vehicle, including standard factory equipment.

F. “Flat rate manual cost” shall mean the estimated cost of repair as indicated by a nationally recognized manual commonly used in the industry.

G. “Inspection” or “reasonable inspection” shall mean the investigation of the age and condition of the motor vehicle for any type of alteration or repair.  Inspections shall be conducted with reasonable care consistent with 12.2.14.9 NMAC.

H. “Inspection report” shall mean the inspection report provided for in 12.2.14.10 NMAC of this rule or equivalent form.

I. “Qualified person” shall mean either:

                    (1)     a person who is ASE, I-CAR level II or qualified by any other equivalent industry recognized program, and has adequate experience with performing vehicle repairs in the areas of:

                              (a)     painting and refinishing;

                              (b)     structural and non-structural analysis and repair;

                              (c)     mechanical and electrical components analysis and repair of motor vehicle cab, chassis, and body;

                              (d)     inspection of vehicles for previous alteration or repair; or

                    (2)     a person who possesses equivalent or similar knowledge, skills and experience.

J. “Repair or repairing” shall mean to restore or attempt to restore to industry standards a motor vehicle’s cab, chassis, or body whether or not the damage resulted from a collision.

K. “Sales price” shall mean the actual stated price on the contract before the deduction of the value of any trade-in and shall not include such charges as taxes, registration fees, extended warranties, service contracts, credit of disability insurance, or any other charges incidental to the sale.

L. “Seller” shall mean natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates which include either:

                    (1)     any person who sells, solicits or advertises the sale of  motor vehicles to retail buyers and who is licensed pursuant to the Motor Vehicle Code,  NMSA 1978, Section 66-4-1(A); or

                    (2)     any person who sells four or more motor vehicles to retail buyers in a calendar year whether licensed to do so or not pursuant to NMSA 1978, Section 66-4-1(A).

M. “Unibody” shall mean a motor vehicle construction technique in which the body is integrated into a single unit with the chassis rather than having a separate body-on-frame.

[12.2.14.7 NMAC - N, 4/1/2014; A, 1/1/2015]

 

12.2.14.8 TO THE BEST OF THE SELLER’S KNOWLEDGE:

A. A seller of a motor vehicle shall furnish at the time of sale of a motor vehicle an affidavit that states to the best of the seller’s knowledge whether there has been an alteration or chassis repair due to wreck damage, except where not required.  NMSA 1978, Section 57-12-6(B).

B. “Knowledge” does not necessarily mean “actual knowledge,” but means knowledge of such circumstances as would ordinarily lead upon investigation, in the exercise of reasonable diligence which a prudent man ought to exercise, to a knowledge of the actual facts.  One who intentionally remains ignorant is chargeable in law with knowledge.  Stevenson v. Louis Dreyfus Corp., 112 N.M. 97, 100 (N.M. 1991) (citing Taylor v. Hanchett Oil Co., 37 N.M. 606, 609 (N.M. 1933)).

C. A seller of a motor vehicle shall be deemed to meet the obligation of “to the best of the seller’s knowledge” when the seller conducts a reasonable motor vehicle inspection that substantially complies

 with 12.2.14.9 and the seller completes an inspection report pursuant to 12.2.14.10 NMAC.  The seller shall maintain the inspection report for three years and make the inspection report available to the buyer upon request.

D. When a seller determines that an affidavit is required pursuant to NMSA 1978, Section 57-12-6(B), the seller shall attach to the Affidavit a copy of the written inspection report disclosing the prior alteration or chassis repair due to wreck damage in a form that substantially complies with 12.2.14.10 NMAC.

E. A seller shall not represent to the buyer that the absence of any indication of an accident on a carfax, autocheck or other vehicle history report is proof that the motor vehicle has never been altered or repaired.

F. When a seller determines that an affidavit is required pursuant to NMSA 1978, Section 57-12-6(B), a copy of the Affidavit shall be maintained by the seller for three years.

[12.2.14.8 NMAC - N, 4/1/2014; Rp, 12.2.14.8 NMAC, 1/1/2015]

 

12.2.14.9 REASONABLE INSPECTION:  The following motor vehicle inspection shall be conducted by qualified persons and shall be deemed reasonable pursuant to NMSA 1978, Section 57-12-6(B) by:

A. obtaining publically available reports on the age or condition of the motor vehicle such as the national motor vehicle title information system report, carfax, or auto check;

B. inspecting the motor vehicle for evidence of repainting such as:

                    (1)     differences in paint color or texture;

                    (2)     mismatched sizes of metallic sparkle in the paint;

                    (3)     embedded dirt or deep scratches in the top coat of the paint; and

                    (4)     uneven paint thickness;

C. inspecting the motor vehicle for evidence of any repair or alteration, with the inspection involving only minimal disassembly, for:

                    (1)     uneven gaps between sheet metal panels;

                    (2)     differences between the headlamps;

                    (3)     paint overspray on moldings and trim;

                    (4)     paint tape edges in the jams;

                    (5)     paint chipped off of bolt heads;

                    (6)     paint missing around bolt heads or bolts not centered in the bolt hole;

                    (7)     hammer damage;

                    (8)     holes drilled and plugged in jams or shell of the motor vehicle;

                    (9)     damage inside the trunk or under the spare tire; and

                    (10)     signs of corrosion or lack of corrosion protection;

D. inspecting the motor vehicle chassis for evidence of such things as:

                    (1)     pinched weld flange underneath the motor vehicle;

                    (2)     weld sites;

                    (3)     signs of repair to unibody structural parts;

                    (4)     signs of buckles or non-OEM welding repair to unibody structural parts;

                    (5)     signs of corrosion or lack of corrosion protection;

                    (6)     any other alteration or repair that may have been performed to the chassis;

              E. inspecting the motor vehicle’s caulking and seam sealer for differences and inconsistencies;

F. inspecting the motor vehicle’s identification number tags;

G. inspecting the motor vehicle parts for labels that say “R-DOT”;

H. inspecting the motor vehicle for any type of repairs not consistent with repair standards; and

I. upon any information or evidence obtained during the motor vehicle inspection performed pursuant to Subsections A-H of this section, performing any additional inquiry or inspection into the motor vehicle’s age or condition appropriate to assure compliance with this rule.

[12.2.14.9 NMAC - N, 4/1/2014; A, 1/1/2015; Rn, 12.2.14.10 NMAC, 1/1/2015]

 

12.2.14.10 PREVIOUS WRECK DAMAGE OR ALTERATION INSPECTION REPORT:  The following information should be contained within an inspection report:

A. seller’s name;

B. dealer license number;

C. address, including city, state, and zip code;

D. the year, make, model, and stock number of the motor vehicle;

E. the motor vehicle identification number;

F. the exterior and interior color of the motor vehicle;

G. an odometer reading of the motor vehicle;

H. a calculation of the total cost for alteration or repair;

I. a “yes” and “no” check box should be used to indicate any inspection revealed frame damage; if “yes” is checked, then the inspection report shall identify the frame damage with particularity;

J. the remainder of the inspection report should be captioned “AGE AND CONDITION OF MOTOR VEHICLE”;

K. for the following paragraphs and subparagraphs of this subsection, a “yes” and “no” check box should be checked for each item which is applicable; if “yes” is checked, then the report shall identify the alteration or repair with particularity and where on the vehicle the alteration or repair is located:

                    (1)     inspection of the motor vehicle for evidence of repainting;

                              (a)     differences in paint color or texture;

                              (b)     mismatched sizes of metallic sparkle in the paint;

                              (c)     embedded dirt or deep scratches in the top coat of the paint;

                              (d)     uneven paint thickness;

                    (2)     inspection of the motor vehicle;

                              (a)     uneven gaps between sheet metal panels;

                              (b)     differences between the headlamps;

                              (c)     paint overspray on moldings and trim;

                              (d)     paint tape edges in the jams;

                              (e)     paint chipped off of bolt heads;

                              (f)     paint missing around bolt heads or bolts not centered in the bolt hole;

                              (g)     hammer damage;

                              (h)     holes drilled and plugged in jams or shell of the motor vehicle;

                              (i)     damage inside the trunk or under the spare tire;

                              (j)     signs of corrosion or lack of corrosion protection;

                    (3)     inspection of the motor vehicle chassis;

                              (a)     pinched weld flange underneath the motor vehicle;

                              (b)     weld sites;

                              (c)     signs of repair to unibody structural parts;

                              (d)     signs of buckles or  non-OEM welding repair to the unibody structural parts;

                              (e)     signs of corrosion or lack of corrosion protection;

                              (f)     signs of any other alteration or repair having been performed to the chassis;

                    (4)     signs of differences and inconsistencies with the motor vehicle’s caulking and seam sealer;

                    (5)     signs of tampering with motor vehicle’s identification tags;

                    (6)     signs of motor vehicle parts labeled “R-DOT”;

                    (7)     signs of any type of repairs not consistent with collision repair standards;

L. date of inspection;

M. calculation and total cost for inspection;

N. the name of the business or individual who conducted the inspection;

O. the name, and address of the business or individual who conducted the inspection, including city, state, and zip code;

P. the telephone number of the business or individual who conducted the inspection;

Q. the printed or typed name of the technician who conducted the inspection; and

R. the signature of the technician who conducted the inspection.

[12.2.14.10 NMAC - N, 4/1/2014 A, 1/1/2015; Rn, 12.2.14.11 NMAC, 1/1/2015]

 

12.2.14.11 SEVERABILITY:  If any part of this rule is held invalid, the remainder of the rule and applications thereof shall remain unaffected.

[12.2.14.11 NMAC - N, 4/1/2014; Rn, 12.2.14.12 NMAC, 1/1/2015]

 

HISTORY OF 12.2.14 NMAC:  [RESERVED]


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Lynn Southard,
Sep 3, 2014, 2:09 PM