N.M. Admin. Code § 12.11.1.12

Current through Register Vol. 35, No. 23, December 10, 2024

Section 12.11.1.12 - ADMINISTRATIVE PROCEDURE

A. Application of rule. These rules govern proceedings conducted pursuant to Section 58-13C-604 B of the New Mexico Uniform Securities Act.

B. Service. Service of subpoenas, notices of intent, summary orders, notices of opportunity for hearing and final orders shall be made either:

(1) personally;

(2) by certified mail, return receipt requested, sent to the last known address of the person; or

(3) by such other means as are reasonably calculated to give actual notice.

C. Administrative conferences.

(1) Any person entitled to a hearing pursuant to Section 58-13C-604 B may submit a written request to the director for an informal conference to discuss an order issued or proposed to be issued by the director. A request for an informal conference will not affect a person's right to a formal hearing pursuant to Section 58-13C-604 B provided that a proper request for a hearing is made pursuant to Section 58-13C-604 B(2). However, any person requesting an informal conference with the director must specifically waive in writing the time deadlines for setting a formal hearing pursuant to Section 58-13C-604 B(2). Upon the granting of an informal conference, the formal hearing will be indefinitely postponed pending the outcome of the informal conference. A person who has formerly waived the right to have a hearing set within 60 days pursuant to Section 58-13C-604 B(2) may reinstate a request for a formal hearing by written notice to the director.

(2) The director may, at the director's discretion, grant a request for an informal conference for the purpose of settlement or simplification of the issues. Conduct and statements made during informal conferences are not admissible as evidence to prove either liability or a violation of the New Mexico Uniform Securities Act or the rules thereunder. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution.

(3) If consistent with Section 58-13C-604 B, the director may dispose of proceedings pending pursuant to that section by stipulation, agreed settlement, consent order or default.

D. Motions. Any motion made prior to the commencement of any hearing must be made in writing to the director. Motions other than those for an extension of time or for additional discovery must be accompanied by a memorandum of law and served on the opposing party. Motions shall be a maximum of ten pages in length. The director may, at the director's sole discretion, rule without a hearing upon any procedural or discovery motion not disposing of the merits of the proceeding. All motions not specifically acted upon by the director shall be deemed denied upon the filing of the final order of the director in the proceeding.

E. Discovery. Parties may, by motion to the director, request reasonable discovery in addition to those procedures granted in Section 58-13C-604 B(8). The director may, at the director's sole discretion, grant or deny further discovery, or impose such limitations or conditions on discovery as may be necessary in the interests of economy and expeditious decision making. Parties are encouraged to seek agreement on the scope of discovery before presenting a motion for additional discovery to the director.

F. Venue. All hearings conducted pursuant to Section 58-13C-604 B shall be conducted in the offices of the securities division or other convenient place within Santa Fe county. The director may, at the director's discretion, hold the hearing in another county of this state upon a finding that good cause exists to do so.

G. Evidence. In a proceeding held pursuant to Section 58-13C-604 B, the formal rules of evidence do not apply and the director or hearing officer 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.

H. Findings of fact and conclusions of law. The director or hearing officer may require all parties of record to file proposed findings of fact, conclusions of law or final orders at the close of the hearing.

I. Costs on appeal. The party seeking review pursuant to Section 58-13C-609 shall pay all costs of appeal, including the expenses of preparation of the record and transcript.

J. Default orders.

(1) A respondent that has received actual or constructive notice of the entry of either a summary order or notice of intent, together with a notice of opportunity for hearing, and fails to respond or appear within the time set forth in Section 58-13C-604 B(2) shall be deemed to have admitted the allegations set forth in the summary order or notice of intent and shall be deemed to have consented to entry of a final order as proposed in the summary order or notice of intent.

(2) A respondent that has received actual or constructive notice of a hearing having been set and fails to appear, either in person or through counsel, at the time and place set for such hearing shall be deemed to have admitted the allegations set forth in the summary order or notice of intent that was entered in the matter before the hearing officer and shall be deemed to have consented to entry of a final order.

N.M. Admin. Code § 12.11.1.12

12.11.1.12 NMAC - Rp, 12.11.1.12 NMAC, 1-1-2010