Unfair Business Practices

Since 2002 Deborah M. DeMack has fought for consumers' rights. All too often, consumers are unfairly taken advantage of by unscrupulous businesses because consumers do not know their rights under the law. Educating oneself about scams, what are the "red flags" to look for, and what to do or not to do are the best ways to protect and defend yourself against those who are willing to violate the law.
 
Under New Mexico law, an "unfair or deceptive trade practice" is any false or misleading oral or written statement, visual depiction or other representation of any kind, made in connection with the sale, lease or rental of goods or services, or made in connection with the extension of credit or in the collection of debts, by a person in the regular course of his business which may, or does deceive or mislead a consumer. See Unfair Practices Act, New Mexico Statute Annotated, 57-12-2(D)("UPA").
   
A "representation" means any statement that "may, tends to, or does deceive or mislead any person." Meaning, whether the statement is an outright lie, deceptive or misleading, or simply tends to deceive, it is potentially actionable. The statement can be orally made or written. Or it can be a picture, e.g., an ad that depicts, for example, a diamond in a ring that is much larger than actual size.

Types of transactions covered: (1) the sale, lease or rental of vehicles, furniture, computers, appliances, etc.; (2) services such as the mechanical repair of vehicles, computer repair, investment advice, construction services, etc.; (3) the extension of consumer credit, e.g., any loan or financing of a purchase , such as a car loan or a loan for the purchase of furniture; and (4) the collection of debts. Real estate is not covered under New Mexico's UPA. Unlike the federal Fair Debt Collections Practices Act, the UPA does apply to both in-house collection departments as well as third-party debt collectors. In other words, the UPA applies to both creditors and debt collectors alike, affording consumers certain protections under state law over and above what the federal law already provides.
   
In addition, the failure to disclose a material fact may violate the UPA. Thus, for example, if a car dealer failed to disclose the fact that a car had a salvage title, that is a failure to disclose a material fact. Reason being, most consumers would want to know whether the car he or she was considering buying had a salvage title, because the fact -- that the car had a salvage title -- is so important, it may make a difference in the consumer's decision had the consumer been aware of that fact.