A. If the governing body fails or refuses to foreclose and sell a tract or parcel of land for the delinquent assessment or installment of the assessment as required in Section 3-33-26 NMSA 1978, any holder of a bond or assignable certificate secured by the assessment may foreclose the assessment lien on such delinquent property in the manner provided by law for the foreclosure of mortgages on real estate.

B. Any person holding two or more assignable certificates issued as authorized in Section 3-33-24 NMSA 1978 may sue in the same action on all tracts or parcels of land described in the certificate to enforce the lien against the tract or parcel of land described in the certificate unless the assessment lien has been adjusted pursuant to Section 3-33-23 NMSA 1978.

C. Whenever a governing body, board of county commissioners or local board of education is delinquent in the payment of an assessment, the holder of any assignable certificate issued against the tract or parcel of land of the municipality, county or school district has the rights and remedies for the collection of the assessment as are given by law for the collection of judgments against municipalities, counties and school districts.

History: 1953 Comp., § 14-32-18, enacted by Laws 1965, ch. 300; 1991, ch. 199, § 16.

Cross references. — For municipal liens, see 3-36-1 NMSA 1978 et seq.

For foreclosure of mortgages, see 39-5-1 NMSA 1978 et seq.

The 1991 amendment, effective April 4, 1991, in Subsection A, substituted "3-33-26 NMSA 1978" for "14-32-19 New Mexico Statutes Annotated, 1953 Compilation" and inserted "or assignable certificate" and, in Subsection B, substituted "3-33-24 NMSA 1978" for "14-32-17 New Mexico Statutes Annotated, 1953 Compilation" and added "unless the assessment lien has been adjusted pursuant to Section 3-33-23 NMSA 1978" at the end.

This statute provides the exclusive remedy for the enforcement of assessments for paving bonds, and the court erred in appointing a receiver to take over and administer the town's assets and perform town's duties to collect assessments. State ex rel. Lynch v. District Court, 1937-NMSC-072, 41 N.M. 658, 73 P.2d 333.

Agreement by a city to collect improvement assessments and apply proceeds in payment of the bonds was valid; the city could be compelled by mandamus to perform that duty and agreement. Gray v. City of Santa Fe, 89 F.2d 406 (10th Cir. 1937).

Duty of certificate holder. — Though the city is empowered to foreclose liens against delinquent assessments, a duty is imposed on the certificate holder either to bring mandamus against the city to perform this responsibility, or to bring foreclosure proceedings in his own name within the period of limitations. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733.

Exhaustion of remedies by bondholder. — Any liability of the municipality in connection with the breach of its express duty in the collection of special assessments is contingent upon and subject first to the corresponding duty of the bondholder or certificate holder to exhaust all remedies available to him: (1) to mandate the municipality to perform its express or statutory duty, and (2) to enforce in its own name and right the collection of the assessments by foreclosure proceedings when so authorized. Purcell v. City of Carlsbad, 126 F.2d 748 (10th Cir. 1942).

Duty of bondholder. — Whether assessments are delinquent and whether the city has failed or declined to enforce collection by foreclosing the assessment liens must be ascertained by the bondholder at his peril. The bondholder has to show that the city failed or refused to proceed after the assessment became delinquent. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733.

The bondholder is under no duty to act in his own behalf until he has notice of the breach of the obligations by the default of the interest or principal on the bond, of which he was the owner or holder, unless it is shown that by some other circumstances, the bondholder was apprised of the breach, in which event it becomes his duty to timely act. Gray v. City of Santa Fe, 135 F.2d 374 (10th Cir. 1941).

Notice of rights of bondholder. — Since this statute has given the bondholder a remedy under appropriate circumstances, it acts as notice of his rights and the limitations thereon, and he is placed on inquiry as to whether such circumstances may have arisen. Munro v. City of Albuquerque, 1943-NMSC-050, 48 N.M. 306, 150 P.2d 733.

Alternative remedies for enforcing collection. — Where city attorney failed to perform duties imposed upon him by the ordinances, to enforce collection of the amount due on assessments by foreclosure as provided by the ordinances, the bondholders had the alternative remedies of enforcing the collection by a suit to foreclose in their own behalf, or mandamus to compel the city to perform its trust obligation. Gray v. City of Santa Fe, 135 F.2d 374 (10th Cir. 1943).

Municipality is liable for damages caused by shrinkage in value of assessed property from the date on which it becomes obligated to enforce collection of assessments by foreclosure and the date on which it becomes the duty of the bondholders either to enforce collection of the assessments in their own behalf, or to compel the city by mandamus to perform its trust obligation, together with costs of the proceedings. Gray v. City of Santa Fe, 135 F.2d 374 (10th Cir. 1943).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Impairing contract rights of holders of improvement bonds or liens by statute permitting acceptance of bonds or interest coupons in payment of improvement assessments, 85 A.L.R. 244, 97 A.L.R. 911.

Priority as between successive issues of obligations of permanently organized local improvement district, 99 A.L.R. 1488.

Requirement of prior appropriation by municipal authorities as condition of making a contract or incurring expense as applicable to local improvements, or bond issue payable only out of special funds and not constituting an obligation of the municipality, 124 A.L.R. 1467.

Judgment in action between property owner and public improvement district or its officer as res judicata as against certificate holders who were not parties, 128 A.L.R. 392.