N.M. Code R. § 14.12.4.15 - CONSUMER PROTECTION BOND PROCEDURES

A. A person claiming to be injured by an alleged violation of the act or these regulations or by reason of any other cause set forth in the Manufactured Housing Act, NMSA 1978, Section 60-14-6, may file with the division a written complaint which states the name and address of the bondholder whose bond has been claimed against and includes a concise statement of the cause of the alleged injury. If it is determined by the division that the complaint is insufficient or defective, the complainant shall be promptly notified and may be permitted to amend the complaint, in the sole discretion of the division.

B. Upon receipt of a written complaint, the division shall investigate, by telephone or by in person contact, within thirty (30) days of receipt of the complaint to determine whether cause exists to investigate further. If such cause exists, an on-site inspection may be made within thirty (30) days of such determination. The on-site inspection is not mandatory. The complainant should be available to the investigator during reasonable business hours during the investigation period.

C. The division shall give written notice to the bondholder within ten (10) days of receipt of the complaint. The notice shall request correction of the violations within forty (40) days of the division's receipt of the complaint. The letter may also request investigation according to Subpart I of the Federal Manufactured Home Construction and Safety Standards, Federal Procedural and Enforcement Regulations, which require investigation of class or re-occurrences of non-conformance to the Federal Standards.

D. Any notice or decision required pursuant to this regulation may be served either personally or by regular, or certified mail, return receipt requested, directed to the bondholder's last known address as shown by the records of the division. If the notice or decision is served personally, service shall be made in the same manner as is provided in the Rules of Civil Procedure for the New Mexico district courts. Where the notice or decision is served by certified mail, it shall be deemed to have been served on the date shown on the return receipt showing delivery, or on the date of the last attempted delivery of the notice or decision to the addressee or refusal of the addressee to accept delivery of the notice or decision.

E. If the committee determines that there is no cause for the complaint, the complaint shall be dismissed. The division shall retain all information on which the decision was based in its consumer complaint files for five (5) years after closing the case. This information should include (a) the determination; (b) who made the determination; and (c) how the determination was made.

F. If committee determines that there is cause for the complaint, the division should attempt to achieve a satisfactory resolution of the complaint through correspondence or informal conference.

G. If the committee determines that the items requested to be corrected by the complainant are the responsibility of the manufacturer, and that these items are required to be corrected under the Federal Regulations, the manufacturer will be requested to submit, in writing, a notification or correction plan to the director of the division within twenty (20) days of receipt of the request and as required under Subpart I of the federal regulations. The plan should include, but not be limited to, a list of manufactured homes affected, method of correction, content of notification notice to consumer and the requirements as detailed under Subpart I of the federal regulations. If a plan is submitted to the division, the division should approve or modify the plan and send it back to the manufacturer for remedial action in the case. If, within twenty (20) days, there does not seem to be a reoccurrence of the same deficiencies, no formal plan needs to be submitted if the division has granted waiver to the plan. The manufacturer shall have sixty (60) days to notify and correct, and an additional thirty (30) days to submit closeout reports of all action taken by the manufacturer.

H. The division may charge a re-inspection fee of sixty-five dollars ($65.00) each time a re- inspection is performed in connection with a consumer complaint. On those consumer complaints, which the division investigates but are not prosecuted by the division, no fee will be charged. The fee, if assessed, shall be charged to the dealer, manufacturer, installer/repairman, or broker as appropriate.

I. If the complaint is not substantially resolved by the foregoing method, the division may send the complaint to the committee for bond attachment proceedings consistent with the procedure set forth herein.

J. If the matter is referred to the committee for bond revocation proceedings, the division shall serve upon the bondholder a written notice containing a statement (1) that the committee has sufficient evidence which, if not rebutted or explained, will justify the committee taking the contemplated action; (2) indicating the general nature of the evidence against the bondholder; (3) the statutes and regulations authorizing the committee to take the contemplated action; (4) that the bondholder may request a hearing on the matter within twenty (20) days after service of the notice; and (5) the rights of a person entitled to hearing as provided under the Uniform Licensing Act, Section 61-1-8 NMSA 1978.

K. If the bondholder does not mail a request for a hearing within the time and in the manner required by this section, the committee may take the action contemplated in the notice, and such action shall be final.

L. If the bondholder timely requests a hearing, the division shall notify the bondholder of the time and place of hearing, the name of the hearing officer, if any, and the statutes and regulations authorizing the committee to take the contemplated action. The notice shall set the hearing within a reasonable time after the division's receipt of the request for hearing, but in no event later than sixty (60) days thereafter.

M. The committee shall conduct the hearing, or may appoint a hearing officer to do so.

N. A bondholder may be represented by counsel, may be represented by a licensed member of his or her profession or occupation, or both; and may present all relevant evidence by means of witnesses and books, papers, documents and other evidence; to examine all opposing witnesses who appear on any matter relevant to the issues;

O. Upon written request to another party, any party may ask to: (1) obtain the names and addresses of witnesses who will or may be called by the other party to testify at the hearing; and (2) inspect and copy any documents or items which the other party will or may introduce in evidence at the hearing. The division and the committee have no power to force the parties to comply with such requests.

P. The party to whom such a request is made should comply with it within ten (10) days after the mailing or delivery of the request. No such request should be made less than fifteen (15) days before the hearing.

Q. The committee has the discretion to grant continuances, to take testimony or to examine witnesses. The committee may also hold conferences before or during the hearing for the settlement or simplification of the issues.

R. The division shall present the case against the bondholder.

S. The committee may admit any evidence and may give probative effect to evidence that is of a kind commonly relied on by reasonably prudent people in the conduct of serious affairs. The committee may in its discretion exclude incompetent, irrelevant, immaterial and unduly repetitious evidence.

T. The committee may take notice of judicially cognizable facts and in addition may take notice of general, technical or scientific facts within their specialized knowledge. When the committee takes notice of a fact, the bondholder should be notified either before or during the hearing of the fact so noticed and its source and shall be afforded an opportunity to contest the fact so noticed.

U. The committee members may use their experience, technical competence and specialized knowledge in the evaluation of evidence presented to them.

V. The record may be preserved by audio or video recording or both.

W. Whether conducted by the committee or by a hearing officer, after a hearing has been completed, all members who were not present throughout the hearing should familiarize themselves with the record, including the hearing officer's report, before participating in the decision.

X. A decision based on the hearing shall be made by a quorum of the committee and signed by the person designated by the committee within ninety (90) days after the hearing.

Y. Within fifteen days (15) after the decision is rendered and signed, the division shall serve upon the bondholder a copy of the written decision.

Z. If a person who has requested a hearing does not appear, and no continuance has been granted, the committee may hear the evidence of such witnesses as may have appeared, and the committee may proceed to consider the matter and dispose of it on the basis of the evidence before it. Where because of accident, sickness or other cause a person fails to request a hearing or fails to appear for a hearing which he has requested, the person may within a reasonable time apply to the committee to reopen the proceeding, and the committee upon finding sufficient cause shall immediately fix a time and place for a hearing and give the person notice as required above. At the time and place fixed, a hearing shall be held in the same manner as would have been employed if the person had appeared in response to the original notice of hearing.

AA. These procedures do not grant a statutory right of review.

Notes

N.M. Code R. § 14.12.4.15

14.12.4.15 NMAC - Rp, 14.12.2.63 NMAC, 12-01-10