(dissenting).
This lawsuit presents a choice of law problem in connection with the repossession of a pickup truck at the Littlewater community. This community is located on land purchased by the United States and held in trust for the Navajo Tribe.
Plaintiff, a Navajo, purchased the pickup truck from Ken Schultz Buick-GMC, Inc. in Albuquerque. This purchase was by a written instrument entitled “INSTALMENT SALE CONTRACT”. It is stipulated that defendant “financed” the purchase by extending credit to plaintiff and that the terms of the credit arrangement are contained within the contract signed by plaintiff and Ken Schultz Buick-GMC, Inc. Defendant has twice repossessed the pickup truck. Plaintiff sought damages in connection with the repossessions. In doing so, plaintiff relied on provisions of the Navajo Tribal Code. Ken Schultz Buick-GMC, Inc. was dismissed as a party by stipulation; the parties are plaintiff, the purchaser, and defendant, whose money financed the purchase. The choice of law problem presents no question concerning the rights of defendant as an assignee of the purchase contract. See § 55-9-318, N.M.S.A. 1978. The choice of law issue is presented on the basis that defendant’s right of repossession is no different than the rights of Ken Schultz Buick-GMC, Inc.
The contract provided that if the buyer was in default and the seller declared the unpaid installments to be immediately due and payable, the seller might take immediate possession without demand and “may enter upon the premises where said property may be and remove same.” The contract also provided that “[a]ny provision of this contract prohibited by law of any state shall as to such state be ineffective. . .. ”
The repossession provision of the contract accords with New Mexico law. See § 55-9-503, N.M.S.A. 1978. The repossession provision of the contract is inconsistent with Navajo law. 7 N.T.C. § 607 requires written consent to be secured from the purchaser at the time repossession is sought. Absent a contemporaneous written consent, the pickup truck could be removed only by order of a tribal court. If New Mexico law applied to the repossession, plaintiff’s damage claims were properly dismissed; if Navajo law applied, the claims were improperly dismissed.
The question for decision, a usual one in choice of law cases, is which of two laws should be applied. However, the factual basis for answering the question is unusual. This is not a case where only one of the two laws could apply; in this case, either of the two laws could apply. New Mexico and the Navajo Tribe had concurrent jurisdiction. The trial court ruled that the pickup was repossessed in New Mexico. “This repossession took place within the jurisdictional limits of the State of New Mexico and the jurisdictional limits of the Navajo Tribe.” Plaintiff has expressly abandoned his claim that the Navajo Tribe had “exclusive authority vis a vis the State of New Mexico to control the disposition of tribal member property on land subject to Navajo jurisdiction.” Abandonment of the claim that Navajo law was exclusively applicable was proper. State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786 (1973).
Plaintiff claims that § 55-9-102, N.M. S.A. 1978 requires that the law of the situs of the repossession governs the method of repossession. The trial court held that New Mexico law applied because New Mexico had “the most significant contacts” which was an application of the “appropriate relation” test stated in § 55-1-105, N.M.S.A. 1978. Plaintiff contends the trial court erred in applying this test. The trial court also ruled that to apply Navajo law in this case would result in one choice of law rule for persons not within any Indian jurisdiction and the possibility of a separate choice of law rule for each Indian tribe and pueblo within New Mexico. According to the trial court, this posed the possibility of at least twenty choice of law rules within New Mexico. Plaintiff does not discuss this ruling.
Sections 55-1-105 and 55-9-102, supra, are part of the Uniform Commercial Code enacted in New Mexico in 1961. As enacted, these two sections are identical to §§ 1-105 and 9-102 of the original Uniform Commercial Code. New Mexico has not adopted the 1972 amendments to 9-102 of the Uniform Commercial Code.
The portion of § 55-1-105, supra, pertinent to this case, reads:
(1) Except as provided hereafter in this section, when a transaction bears a reasonable relation to this state and also to another state or nation the parties may agree that the law either of this state or of such other state or nation, shall govern their rights and duties. Failing such agreement this act [this chapter] applies to transactions bearing an appropriate relation to this state.
(2) Where one of the following provisions of this act specifies the applicable law, that provision governs and a contrary agreement is effective only to the extent permitted by the law (including the conflict of laws rules) so specified: * * * * * *
policy and scope of the article on secured transactions. Sections 9-102 [55-9-102 NMSA 1978] and 9-103 [55-9-103 NMSA 1978].
The portion of § 55-9-102, supra, pertinent to this case reads:
(1) Except as otherwise provided in Section 9-103 [55-9-103 NMSA 1978] on multiple state transactions and in Section 9-104 [55-9-104 NMSA 1978] on excluded transactions, this article applies so far as concerns any personal property and fixtures within the jurisdiction of this state:
(a) to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper, accounts or contract rights; and also
(b) to any sale of accounts, contract rights or chattel paper.
(2) This article applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. This article does not apply to statutory liens except as provided in Section 9-310 [55-9-310 NMSA 1978],
Neither § 55-9-103 nor § 55-9-104 N.M. S.A. 1978 is applicable in this case.
Weintraub, Choice of Law in Secured Personal Property Transactions: The Impact of Article 9 of the Uniform Commercial Code, 68 Mich.L.Rev. 684 at 691 (1969-70) states:
If one seeks to utilize the choice-of-law provisions of the Uniform Commercial Code in order to determine what law should govern the rights and duties between a debtor and a secured creditor, he confronts many puzzles for which the solutions are not clear. The first, and perhaps most fundamental, of these Code conundrums is whether to apply the basic Code choice-of-law section, 1-105, or the article 9 choice-of-law sections, 9-102 and 9-103.
Section 1-105(1) provides the basic choice-by-law rules for the Code and thus for article 2, which covers sales. Section 1-105(2), however, indicates that the conflicts provision of 1-105(1) is superseded to the extent that the conflicts provisions of sections 9-102 and 9-103 apply to secured transactions.
This case does not involve a situation where the parties agreed to a choice of law. The trial court ruled that the contract “makes no provision as to which law should apply” and this ruling is not challenged. A New Mexico decision involving contractual choice of law does illustrate one of the conundrums to which Weintraub, supra, refers.
Section 55-1-105(2), supra, provides that if the policy and scope of § 55-9-102, supra, specifies the applicable law then § 55-9-102, supra, governs, and an agreement of the parties as to choice of law is effective only to the extent permitted by§ 55-9-102, supra. Levenberg, Comments on Certain Proposed Amendments to Article 9 of the Uniform Commercial Code, 56 Minn.L.Rev. 117 at 141 (1971-72) states that
the present conflict of laws provisions of Section 9-102, when read in conjunction with present Section 1-105, prohibit the parties to a secured transaction involving tangible collateral subject to Section 9-102 from selecting the law of some state other than that prescribed by Section 9-102 as the law governing any aspect of the transaction covered by a provision of Article 9 as enacted in the prescribed state.
Jim v. CIT Financial Services Corporation, 87 N.M. 362, 533 P.2d 751 (1975) had facts almost identical to this case. Recognizing that § 55-1-105(2) and § 55-9-102, supra, limited the right of the parties to choose an applicable law, Jim, supra, nevertheless held that “nothing” in § 55-9-102, supra, “indicates that, under the facts of this case, the parties were not free to choose their own law.”
The view in Jim, supra, of the limited effect of § 55-9-102, supra, on a contractual choice of law differs from that expressed by Levenberg, supra. Why? These differences occur because § 55-9-102, supra, is ambiguous. Weintraub, supra, at 697 comments that whatever the shortcomings of § 55-1-105(1), supra, those shortcomings are minimal in comparison to § 55-9-102, supra, in which “the Code reaches its nadir with regard to both Delphic draftsmanship and regressive policy.”
Jim, supra, and Levenberg, supra, give different meanings to § 55-9-102, supra. This is my starting point in determining the applicability of the “appropriate relation” test of § 55-1-105(1), supra, because the trial court was attempting to follow Jim in applying that test.
To what does § 55-9-102, supra, apply? The Official Comment to § 9-102 of the original Uniform Act states the “main purpose” was to bring all consensual security interests in personal property and fixtures within Article 9, except as provided in §§ 9-103 and 9-104. 3 U.L.A.-U.C.C. (Master Edition) page 20. The inclusive language of § 55-9-102, supra, is consistent with this purpose.
The Official Comment, 3 U.L.A.-U.C.C., supra, at 22, goes on to state: “In general this Article adopts the position, implicit in prior law, that the law of the state where the collateral is located should be the gov- • erning law, without regard to possible contacts in other jurisdictions.” The choice of law position is stated in § 55-9-102(1), supra; the position stated in the statute is not worded as broadly as the Official Comment suggests. Section 55-9-102(1), supra, provides that Article 9 applies to personal property within the jurisdiction of this state. To what does it apply? To transactions intended to create a security interest and to certain sales.
Neither Jim, supra, nor this case, involved the creation of a security interest or a sale as described in § 55-9-102(1), supra. Thus Jim, supra, under the language of the statute, could properly view § 55-9-102, supra, as not barring an agreement of the parties as to choice of law under § 55-1-105, supra. This view was not an aberration by our Supreme Court. Weintraub, supra at 702, cautions that § 55-9-102(1), supra, should not be read literally and, at 705, recognizes that “several reasonable constructions” are possible. Levenberg, supra, Note 37 at 138, states:
37. UCC § 9-102 fails to state explicitly which state’s law applies when the collateral has been located in different states at various times. That is, the present provision leaves open the question — “located at what time?” The possible choices would be the law of the state where the collateral was located at the time of the signing of the security agreement, at the time of the attachment of the security interest, at the time of the perfection of the security interest or at the time a controversy arose as to rights in it.
Professor Gilmore, one of the principle drafters of the current provisions of Article 9, has stated that this silence in UCC § 9-102 “presumably . . . refers to the location of the collateral at the time the security interest attaches.” 1 G. GILMORE, SECURITY INTERESTS IN PERSONAL PROPERTY 318 n.5 (1965).
Neither Jim, supra, nor this case, involved the signing, attachment of perfection of the security interest. Both were concerned with the choice of law applicable to repossession rights exercised in protecting the unchallenged security interest. In this situation, Jim found nothing in § 55-9-102, supra, which barred the applicability of the choice of law provisions in § 55-1-105, supra. It should be noted that the 1972 amendments to § 9-102 of the Uniform Commercial Code attempted to correct the ambiguity in the original Code by certain deletions. These deletions were for the purpose of correcting an “incomplete statement” and to “make applicable the general choice of law principles of Section 1-105”. 3 U.L.A.-U.C.C. (1980 Pamphlet) page 8, “Official Reasons for 1972 Change”. Thus, the 1972 amendments approach the interpretation placed on § 55-9-102, supra, in Jim.
This Court, as well as the trial court, is to follow decisions of the Supreme Court. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973). Accordingly, the trial court proceeded properly in applying Jim, in considering that § 55-9-102, supra, did not apply to the facts, in applying § 55-1-105(1), supra, and there being no agreement by the parties as to choice of law, in applying the “appropriate relation” test.
Plaintiff contends that the trial court misapplied the “most significant contacts” test. Section 55-1-105(1), supra, does not use the words “most significant contacts”; rather, the statutory words are “appropriate relation to this state.” I do not determine whether the phrases have different meanings; it is unnecessary to do so.
Plaintiff recognizes that the contract was negotiated and entered in Albuquerque, and that Ken Schultz Buick-GMC, Inc.’s and defendant’s businesses were located in Albuquerque. Plaintiff seems to argue that the “appropriate relation” was with the Navajo Tribe because plaintiff is a Navajo and the acts of repossession occurred at the Navajo community of Littlewater. However, plaintiff makes no effort to demonstrate that the Navajo relationship is more appropriate than New Mexico’s and disregards the fact that all of the relationships in this case occurred in New Mexico even though some also occurred in an Indian community within New Mexico.
It is unnecessary to decide the basis for the appropriate relation test. The essence of plaintiff’s argument is that an appropriate relation test is inapplicable because § 55-9-102, supra, applies; that under that section, “appellee’s rights of repossession are not governed by New Mexico law but instead this court is required to look instead to the Navajo Tribal Code (7 N.T.C. § 607) regarding appellee’s rights at the time of each repossession.”
The basis for this argument is that § 55-9-102, supra, means more than the words used in the statute. Levenberg, supra, at 140-41, takes this view in suggesting that § 55-9-102, supra, applies to “any aspect” of a transaction governed by Article 9 of our Uniform Commercial Code. Several decisions have held the choice of law provision of § 55-9-102, supra, applicable in repossession or security foreclosure situations. Fidelity Bank & T. Co. of N.J. v. Production Metals Corp., 366 F.Supp. 613 (E.D.Penn.1973); Associates Discount Corp. v. Cary, 47 Misc.2d 369, 262 N.Y.S.2d 646 (1965); see Doyle v. Northrop, 455 F.Supp. 1318 (D.N.J.1978). Although this interpretation is contrary to Jim, supra, I will assume, in answering plaintiff’s contention, that § 55-9-102, supra, applied to the repossessions in this case.
In contending for the applicability of § 55-9-102, supra, plaintiff relies on the applicability of Article 9 to “personal property . . . within the jurisdiction of this state.” This is a New Mexico statute. For the statute to be applicable, the pickup truck must have been within New Mexico’s jurisdiction. The trial court ruled that the pickup truck was within New Mexico’s jurisdiction. This being so, if § 55-9-102 applied, then § 55-9-503, supra, an Article 9 provision, applied and authorized the repossessions.
Plaintiff contends that § 55-9-102, supra, compels the application of Navajo law rather than New Mexico law. His view is that § 55-9-102, supra, is a situs rule, that the law of the situs controls repossession rights. Assuming, but not deciding, that § 55-9-102, supra, does more than state when New Mexico law applies and adopts a situs rule by implication, plaintiff does not benefit. The site of the pickup truck in this case was within two jurisdictions. If § 55-9-102, supra, adopts a situs rule, it does not choose between two different situs rules, both of which apply to the particular location. Because the laws of two jurisdictions apply to the situs in this case, any situs rule in § 55-9-102, supra, does not resolve the choice of law question, and § 55-1-105(1), supra, applies.
The foregoing has answered plaintiff’s attack on the trial court’s ruling and sustains the trial court’s judgment of dismissal. I also, as an independent ground, would affirm the trial court’s application of New Mexico law to the repossession as a matter of policy.
What plaintiff seeks is the application of Navajo law to the repossession and the exclusion of New Mexico law. The trial court pointed out that each Indian tribe and pueblo might have a repossession law different from New Mexico’s and that if plaintiff’s view should prevail, there could be some twenty different repossession rules applicable within the boundaries of this state. The trial court rejected this view and so do I.
Jim, supra, held that the full faith and credit provisions applied to the laws of the Navajo nation; I assume that this same result would be reached for all Indian tribes and pueblos within New Mexico. However, full faith and credit need not be given where “a foreign legislative enactment or statute is sought to be enforced in the forum state. A forum state need not subordinate its own statutory policy to a conflicting public act of another state.” As a matter of policy, New Mexico need not, because of the full faith and credit clause, enforce Indian laws on repossession contrary to the statutory policy of New Mexico expressed in § 55-9-503, supra.
The underlying purpose of New Mexico, in adopting its version of the Uniform Commercial Code, was to “simplify” the law governing commercial transactions and to “make uniform” the law among the various jurisdictions. Section 55-1-102, N.M.S.A. 1978. New Mexico’s purpose of simplification and uniformity would not be furthered by enforcing each variation on the law of repossession adopted by Indian tribes and pueblos located within the boundaries of New Mexico.
The trial court’s order of dismissal should be affirmed.