New Mexico Unfair Practices Act Utilized by Victim of Improperly-Conducted Repossession

A particular repossession of an automobile belonging to a Rio Rancho resident who, in fact, had defaulted on his car loan, fell afoul of New Mexico’s Unfair Practices Act (“UPA”), according to a recent United States District Court ruling. The court’s opinion in Duke v. Garcia, No. 11-CV-784-BRB/RHS (U.S. Dist. Ct. D. N.M. 2014) shows that, just because an authorized creditor may have a right to pursue certain collection options does not mean it can use questionable methods in doing so.


In this instance, Plaintiff Tiar Duke purchased a Dodge Charger from a dealership in Georgia, with the contract eventually being assigned to Auto Acceptance Corporation (“Auto Acceptance”). When, two and a half years later, she stopped remitting her monthly payments to the company, Auto Acceptance tried at first to locate Duke in her old residence and call her. Eventually they recognized she was living in New Mexico and they sent her text messages stating a warrant had been filed for her arrest and something akin to “I hope you enjoy jail.” No warrant was ever filed for Plaintiff’s arrest or even genuinely considered.


On April 15, 2011, Defendant Access Auto Recovery, LLC, repossessed Plaintiff’s car at her home in Rio Rancho, New Mexico, on behalf of Auto Acceptance, which also, on that same date, mailed Plaintiff a letter stating she could recover the vehicle if she paid $5,415.45. In that letter, Auto Acceptance also indicated that if it received more money from selling the vehicle “than you owe, you will get the extra money.”


But three weeks later, when the vehicle was sold to a third party, with Auto Acceptance receiving a net amount of $8,390, the company did not tender a surplus payment to the Plaintiff.  As a result of the false text messages sent to the Plaintiff, other back-dated correspondence sent to her and the company’s failure to remit the surplus to her as was required by the terms of their contract and as indicated in the letter of April 15, she sued the Defendant under the UPA.


The Defendant attempted to have the case dismissed via a Motion for Summary Judgment and, shortly thereafter, the Plaintiff responded that she was entitled to summary judgment under both the UPA and the Uniform Commercial Code (UCC). The District Court found that the UPA did apply to this situation and that this state law was broader than the federal Fair Debt Practices Collection Act. It also concluded that the Plaintiff deserves summary judgment on its claim under both the UCC and the UPA so it entered a judgment on behalf of the Plaintiff. It did decide to hold open the issue of what damages Auto Acceptance owes the Plaintiff but the issue of the company’s liability was settled.


The attorneys at Giddens & Gatton Law, PC represent individuals involved in a variety of legal matters, including collection matters in New Mexico. Giddens & Gatton Law, PC is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm’s website at