Section 57-12-25 - Solicitations using loan information; restriction; cause of action. - New Mexico Statutes

57-12-25. Solicitations using loan information; restriction; cause of action.

A.     A person shall not reference the trade name or trademark of a lender or a trade name or trademark confusingly similar to that of a lender in a solicitation offering services or products without the consent of the lender, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of a lender's trade name or trademark:

(1)     the name, address and telephone number of the person making the solicitation;

(2)     that the person making the solicitation is not affiliated with the lender;

(3)     that the solicitation is not authorized or sponsored by the lender; and

(4)     that the loan information referenced was not provided by the lender.

B.     A person shall not reference a loan number, loan amount or other specific loan information that is not publicly available in a solicitation offering services or products, unless the information is included in a communication from a lender or an affiliate of a lender to a current customer of the lender or a person who was a customer of the lender during the eighteen months immediately preceding the solicitation.

C.     Except as provided in Subsection D of this section, a person shall not reference a loan number, loan amount or other specific loan information that is publicly available in a solicitation offering services or products, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of the loan number, loan amount or other specific loan information:

(1)     the name, address and telephone number of the person making the solicitation;

(2)     that the person making the solicitation is not affiliated with the lender;

(3)     that the solicitation is not authorized or sponsored by the lender; and

(4)     that the loan information referenced was not provided by the lender.

D.     Subsection C of this section does not apply to a communication by a lender or an affiliate of a lender with a current customer of the lender or with a person who was a customer of the lender during the eighteen months immediately preceding the communication. 

E.     A person shall not use the name of a lender or a name similar to that of a lender in a solicitation directed to consumers if that use could cause a reasonable person to be confused, mistaken or deceived as to:

(1)     the lender's sponsorship, affiliation, connection or association with the person using the name; or

(2)     the lender's approval or endorsement of the person using the name or the person's services or products. 

F.     Any reference to an outstanding loan, including the name of the lender, the loan number, the loan amount or other specific information about the loan that appears on the outside of an envelope, that is visible through the envelope window or that appears on a postcard in connection with any written communication that includes or contains a solicitation for goods or services, is prohibited without the consent of the lender.

G.     The prohibitions of this section do not apply to the use by a person of the trade name of another lender in an advertisement for services or products that compares the services or products offered by the other lender.

H.     A lender or owner of a trade name or trademark may seek an injunction in a state district court against a person who violates this section to stop the unlawful use of the trade name, trademark or loan information.  In such an action:

(1)     the person seeking the injunction shall not have to prove actual damage as a result of the violation; and 

(2)     irreparable harm and interim harm to the lender or owner shall be presumed.

I.     A lender or owner seeking an injunction under Subsection H of this section may, in the same action, seek to recover actual damages and any profits the defendant has accrued as a result of a violation of this section.  The prevailing party in an action brought pursuant to this section may recover costs associated with the action and reasonable attorney fees from the other party.

J.     As used in this section:

(1)     "affiliate" means a business entity that, directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with another business entity; and

(2)     "lender" means an insured state or national bank, a state or federal savings and loan association or savings bank, a state or federal credit union, a mortgage loan company, an escrow company or any other person who makes loans in this state or a holder of a loan and any affiliate, or any third party operating with the consent of the lender.