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New Mexico Lawyers Serving New Mexico's Legal Needs Since 1997

May 2014 Archives

Objections to New Water Agreement May Block State’s Deal with Pueblos

Recently a lawsuit was filed by three state legislators attempting to stop the implementation of a water settlement with members of the Navajo Indian nation unless and until it received approval of the deal from the New Mexico Legislature. Now a similar issue arises – with one twist – concerning a water-rights settlement between the state and four pueblos in northern Santa Fe County. As with the water rights settlement with the Navajo Indians, opponents claim this agreement requires approval by the Legislature.

Extinguishing an Easement by Correcting the Record

The Amethyst Land Company, Inc. (“Amethyst”) purchased a 22-acre parcel of land in the Santa Fe foothills via quitclaim deed from a development corporation, Desert Sunrise, which had itself two years earlier bought the parcel from Keith McDuffee.  McDuffee was selling parcels of land in the area before he filed bankruptcy. About 2 years earlier he was selling a smaller, adjacent plot of land to the Terhune family. They refused to go forward with the sale unless an easement, which burdened the property which they were buying, was terminated. McDuffee agreed to terminate the easement and executed an Extinguishment Agreement to effectuate that termination. 

Plan of Adjustment in Detroit Bankruptcy facing difficult hurdles

When the City of Detroit proposed a plan of adjustment in its Chapter 9 bankruptcy action, there appeared to be some hope that the case could be wrapped up before the end of September. Currently, the City’s interests in the bankruptcy case have been handled by its emergency manager, Kevyn Orr, who was appointed months before the City filed Chapter 9, for the purpose of addressing the City’s long-term debt problems. But now the chance of serious objections from some creditors, including bondholders, as well as a question regarding whether the Michigan Legislature will agree to appropriate $350 million to the City, put that timetable in serious jeopardy.

Powers of all Three Branches at Issue in Navajo Water Settlement

Three members of the New Mexico Legislature filed a lawsuit challenging the validity of a settlement allocating a discrete amount of water from the San Juan River to the Navajo Indian nation. Back in 1948 a compact between the states of New Mexico, Colorado, Utah and Wyoming apportioned a large volume of water to New Mexico in recognition of the great need of the Navajo Indians in the state for the resource. Despite the compact’s directives, the Navajo never received the water promised under the deal – until recently.

New England Compounding Pharmacy in Bankruptcy Offers Fund to Compensate Claimants

In September 2012, the Centers for Disease Control and Prevention (CDC), in collaboration with state and local health departments and the Food and Drug Administration (FDA) , began investigating a multistate outbreak of fungal meningitis and other infections among patients who received contaminated preservative-free MPA steroid injections from the New England Compounding Center in Framingham, Massachusetts. The company operating the compounding pharmacy, known as New England Compounding Pharmacy, Inc. became deluged with lawsuits as the outbreak caused 64 deaths and approximately 700 total cases.

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.

Otero County Ranchers Challenge Forest Service over Fence in Lincoln National Forest

As drought conditions erode the water supply throughout New Mexico, ranchers have become concerned over whether they can utilize sufficient water to profitably maintain their operations. The recent placement by the United States Forest Service of a fence preventing some property owners from receiving water from a particular creek, known as Agua Chiquita, in Otero County has triggered a dispute between these ranchers and the Service.

Compensating Heirs of Decedents in Wrongful Death Actions

In New Mexico civil actions for wrongful death must be brought, according to N.M. Stat. 41-2-3, by a personal representative within three years of the date of the death of the person caused by the wrongful act, neglect or default of another. If the deceased has left a spouse, child, father, mother, brother, sister or children, the proceeds of the any judgment awarded in a wrongful death case in New Mexico will not be used to pay the debts of the deceased. Rather they will be apportioned to certain parties who will have priority as listed below:

Trustee of Alleged “Sham Trust” Slated to Defend Its Operation At Trial

Frequently people facing particular legal problems will establish trusts for the benefit of their children or grandchildren when they fear that, if assets are not set aside for their beneficiaries, there will not be sufficient funds to maintain support of their children throughout the balance of their kids’ or grandkids’ childhoods. A notorious example many Americans may remember involves O.J. Simpson. After Nicole Brown Simpson was murdered, he placed certain financial assets in a trust for his children fearing that the balance of his assets could be subject to civil claims for wrongful death. The law permits the creation of these trusts but strictly scrutinize such instruments if it appears they are being used for some other purpose beyond holding investments for the benefit of the children or any other beneficiaries the trust purports to support.

Receiver’s Authority to Pursue Claims Tested in Stanford Ponzi Scheme Case

While the arrest of Bernie Madoff over 5 years ago for running a multibillion dollar Ponzi scheme which financially destroyed many of the people and institutions for which he promised to invest garnered the largest headlines, in fact, a much bigger swindle was perpetrated by Allen Stanford and his company, Stanford Financial Group (the “Group”) which also amounted to a Ponzi scheme. Over 18,000 investors lost billions of dollars as a result of the massive deceit engineered by Mr. Stanford and his company which systematically issued false certificates of deposit of no actual value.

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