Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

1.4-1 Executions of Judgments

(§§ 39-4-1 through 39-4-16; Magis. Ct. R. 2-801; Metro. Ct. R. 3-801)

A. Definitions; General

1. Execution is a method of enforcing a judgment for:

   a. money; or

   b. possession of personal property; or

   c. possession of premises.

2. The forms of execution most frequently used in Metropolitan and Magistrate Court are:

   a. Writ of execution. Civil Form 4-801.

   b. Execution in forcible entry or detainer. Section 35-10-6.

   c. Execution of writ of restitution in owner resident actions. See §1.6-1 of this Benchbook.

3. An execution is prepared by the court or by the judgment creditor's attorney.
4. The judge issues the execution to the sheriff, who is responsible for obtaining compliance with the execution, including collection of the amount due and holding a sheriff's sale if necessary. Section 39-4-1; Magis. Ct. R. 2-801; Metro. Ct. R. 3-801.
5. The sheriff must serve a writ of execution, in the manner provided by law, within sixty (60) days of the date issued. Section 39-4-9; Magis. Ct. R. 2-801(I); Metro. Ct. R. 3-801(I). The sheriff shall serve a writ of execution wherever the defendant may be found in the State.
6. Execution may issue even though an appeal is pending, unless a supersedeas bond is posted. Magis. Ct. R. 2-705; Metro. Ct. R. 3-706.

B. Writ of Execution

1. A writ of execution is used when money damages are involved. Civil Form 4-801 (Writ of Execution); see also §§1.5-1 through -3 of this Benchbook regarding attachment, replevin and forcible entry and detainer.
2. Unless a judge stays a judgment, the clerk shall issue a writ of execution for seizure of property to satisfy a judgment as follows. Magis. Ct. R. 2-801(A); Metro. Ct. R. 3-801(A).

   a. If the judgment debtor is not a natural person, the judge may issue a writ at any time after the judgment is filed.

   b. If the judgment debtor is a natural person, the judge may issue a writ:

   (i) upon the attorney for the judgment creditor filing a certificate, or the judgment creditor filing an affidavit, that the judgment debtor was served with a notice of right to claim exemptions and has not filed a claim of exemption; or

   (ii) upon entry of an order finding that the property to be seized and sold is not exempt; or

(iii) upon the judgment debtor filing of a waiver of the right to claim a statutory exemption from execution. The waiver must specifically describe the property that the court may seize and sell to satisfy the debt.

3. A writ of execution orders the sheriff to:

   a. Levy (seize) the amount of the judgment, together with interest and costs incurred since entry of the judgment against the judgment debtor's personal property, located within the county and not exempt by law. See §1.4-1(C) of this Benchbook regarding exemptions.

   b. Make a return on the writ within 60 days of issuance of the writ. If the sheriff does not serve an execution within 60 days a court may issue a second or subsequent writ wherever the judgment debtor or the judgment debtor's property may be found in the State of New Mexico. Magis. Ct. R. 2-801(I); Metro. Ct. R. 3-801(I).

4. The following information is entered on the writ:

   a. name and address of party against whom the court entered a judgment;

   b. amount of judgment, costs to date of judgment, and any additional costs from the date the court entered the judgment to the date of the execution;

   c. interest rate and the date from which the court computes interest (unless otherwise provided, the interest date is the date of entry of the judgment). Civil Form 4-801 (Writ of Execution); see also §1.3-1(E) (regarding interest) and Appendix B for interest tables.

5. No writ of execution shall be issued:

   a. Against the real property of the judgment debtor. The court may not levy the real property of a judgment debtor for the purpose of satisfying a judgment. Section 39-4-2.

   b. Against personal property that is exempt by law, unless the judgment debtor waives such exemption. Magis. Ct. R. 2-801(F); Metro. Ct. R. 3-801(F).

6. The original of the writ of execution is delivered to the sheriff by the judgment creditor or his or her attorney, a copy is retained by the court, and a copy is served on the judgment debtor in the manner provided for service of pleadings and other papers.
7. The judgment creditor should deliver the writ to the sheriff the same day the writ is issued.
8. The judgment creditor may request execution at any time within seven years after entry of the judgment or revival of judgment. Section 39-1-20. A judgment creditor may bring an action to revive a judgment for a period of fourteen years after its entry. Frischoff v. Tometich, 113 N.M. 271 (1991).

C. Exemptions

1. Exemptions are those items of property that are statutorily excluded from levy in an execution action. Civil Forms 4-803 (Claim of Exemptions), 4-808A (Notice of Right to Claim Exemptions from Execution); see also §§10-11-136.1, 10-12B-7, 10-12C-7, 22-11-42, and 51-1-37(C) (regarding exceptions to exemptions for child support, division of community property, unemployment benefits, and public employee retirement benefits).
2. The following exemptions are allowed:

   a. Personal property in the amount of $500 (for persons who support only themselves, the $500 exemption is allowed for personal property other than money). Section 42-10-2.

   b. A homestead in the amount of $30,000 (for married persons, widows, widowers and persons who support another person). Section 42-10-9; 39-4-2 (executions from magistrate courts shall not go against lands); Ruybalid v. Segura, 107 N.M. 660 (Ct. App. 1988). If the homestead is owned jointly by two persons, each owner is entitled to an exemption of $30,000. Section 42-10-9. Compare §42-10-11 (for inapplicability of exemptions).

   c. Real or personal property in the amount of $500 (for persons who do not own a homestead). Section 42-10-2.

   d. One motor vehicle (in an amount up to $4,000). Section 42-10-2.

   e. Jewelry (in an amount up to $2500). Section 42-10-2.

   f. Tools of the judgment debtor’s trade (in an amount up to $1500). Section 42-10-2.

   g. Clothing. Section 42-10-2.

   h. Furniture. Section 42-10-2.

   i. Books. Section 42-10-2.

   j. Medical health equipment being used for the health of the person and not for his or her profession. Section 42-10-2.

   k. Interest in or proceeds from a state police pension or retirement fund. Section 29-4-10.

   l. Estate and family personal property allowance. Sections 45-2-401 and 45-2-402.

   m. Public assistance monies paid or payable. Section 27-2-21.

   n. Workers' compensation. Section 52-1-52.

   o. Unemployment compensation benefits Section 51-1-37.

   p. Occupational health benefits. Section 52-3-37.

   q. Crime victim’s reparation payments. Section 31-22-15.

   r. Shares in non profit cooperative associations. Section 53-4-28.

   s. Material in construction projects. Section 48-2-15.

   t. Interest in public lands. Section 19-3-3.

   u. Oil and gas materials. Section 70-4-12.

3. Personal property for which an exemption is claimed must be valued at the market value of used property. Section 42-10-1.
4. Where a judgment debtor does not own a homestead, the judgment creditor must provide the judgment debtor with written notification of his or her right to exemption in lieu of a homestead ($2,000 worth of real or personal property, in addition to other exemptions). Section 42-10-10; Civil Form 4-803 (Claim of Exemption on Execution); see generally Magis. Ct. R. 2-801(B); Metro. Ct. R. 3-801(B).
5. Service of right to claim exemption from execution.
   In Aacen v. San Juan County Sheriff's Dept., 944 F.2d 691 (10th Cir. 1991), New Mexico's post judgment execution statutes were held constitutionally deficient for failure to give judgment debtors sufficient notice of the right to claim exemptions and to have a court hearing. The Magistrate and Metropolitan Court rules and forms relating to both executions and garnishments were revised to provide a procedure for granting the necessary notice and hearing:

   a. A notice of right to claim exemptions and a claim-of-exemption form must be served on a judgment debtor who is a natural person at least ten (10) days prior to the date of seizure of the property to be sold. Magis. Ct. R. 2-801(B); Metro. Ct. R. 3-801(B).

   b. Although a corporation or limited partnership is not a “natural person” entitled to be served with this notice, a person who is sued in his or her capacity as a sole proprietor of a business is so entitled. The court should, therefore:

   (i) decline to issue a writ of execution where the judgment creditor has not served a notice of right to claim exemptions upon a judgment debtor who is the sole proprietor of a business and who has not waived the right to claim exemptions; and

   (ii) consider posting or distributing a general notice advising pro se litigants, who may not understand that the term “natural persons” on Civil Form 4-805A encompasses sole proprietorships, of the necessity of serving the notice of right to claim exemptions on such individuals.

   c. If the judgment debtor has entered an appearance, service is made in the same manner as any other pleading. Magis. Ct. R. 2-801(B)(1); Metro. Ct. R. 3-801(B)(1). If the judgment debtor has not entered an appearance, service must be made in the same manner as is required for the service of the original summons and complaint. Magis. Ct. R. 2-801(B)(2); Metro. Ct. R. 3-801(B)(2). If service cannot be made in either of these ways, it must be made in a manner reasonably calculated to ensure actual notice of the right to claim exemptions. Magis. Ct. R. 2-801(B)(3); Metro. Ct. R. 3-801(B)(3).

6. Waiver of right to claim exemption.
   The judgment debtor may waive the right to claim a statutory exemption by filing a written waiver of exemption specifically describing the property that may be seized and sold to pay the debt. The judgment debtor may also be deemed to have waived the right to claim statutory exemptions by failing to file a claim of exemption within ten (10) days after service. Magis. Ct. R. 2-801(A) & (E); Metro. Ct. R. 3-801 (A) & (E); Civil Form 4-803 (Claim of Exemption on Execution).
7. Asserting a claim of exemption.
   The judgment debtor may claim an exemption by filing a claim-of-exemption form with the court within ten (10) days after service of the notice of right to claim exemptions. The judgment debtor must serve a copy of the claim on the judgment creditor. Magis. Ct. R. 2-801(D) & (E); Metro. Ct. R. 3-801(D) & (E).
8. Dispute of claimed exemption. (Magis. Ct. R. 2-801(F), (G), & (H); Metro. Ct. R. 3-801(F), (G), & (H))

   a. Within ten (10) days after service of the claim of exemption, the judgment creditor may file a notice of dispute and request a hearing. This notice must be served on the judgment debtor. If the judgment creditor does not dispute an exemption, the property is exempt and the judgment creditor may proceed against any other property using the same rules.

   b. Upon a filing of notice of dispute and request for a hearing, the clerk of the court must promptly give notice of the date and time of the hearing to the parties. The court must hold a hearing on the claim of exemption within ten (10) days after it is filed. At the hearing the court may determine the merits of the dispute or may postpone its decision pending any discovery that may be required to determine the status of the property.

   c. Upon completion of a hearing on a claim of exemptions, the court enters an order on the claim of exemption and may order the judgment debtor to pay any additional costs in the proceeding. Civil Form 4-804 (Order of Exemption and Order to Pay in Execution Proceedings).

9. Sheriff's seizure and sale of property.
   The sheriff may not seize property of a judgment debtor who is a natural person prior to service of a claim of exemption. Magis. Ct. R. 2-801(B); Metro. Ct. R. 3-801(B). After seizure of the property, the sheriff files a return with the court.

D. Claim of Exemption for Satisfaction of Separate and Community Debts.

1. The priorities and exemptions described below do not apply unless:

   a. a spouse has filed a claim of exemption or priority on the satisfaction of separate and/or community debts and

   b. the spouses are both living. Sections 40-3-10, 40-3-11, and 42-10-13.

2. The following priorities and exemptions apply to the satisfaction of separate debts if there is an approved claim of exemption or priority filed by the nondebtor spouse. Sections 40-3-10 and 42-10-13.

   a. The debt is satisfied first from the debtor spouse's separate property, excluding that debtor spouse's interest in property held in joint tenancy or as tenants in common.

   b. If the debtor spouse's separate property is insufficient to satisfy the debt, levy is made on the debtor spouse's one-half interest in the community property or in property held in joint tenancy or as tenants in common (excluding the residence of the spouses).

   c. The debtor-spouse's interest in the spouses’ residence may not be utilized for execution in Magistrate Court. Section 39-4-2.

   d. The community interest and separate property of the nondebtor spouse cannot be levied upon to satisfy the separate debt of the debtor spouse.

3. The following priorities and exemptions apply to the satisfaction of community debts if there is an approved claim of exemption or priority filed in Metropolitan or Magistrate Court. Sections 40-3-11 and 42-10-13.

   a. The debt is satisfied first from all community property and all property held in joint tenancy or as tenants in common, excluding the spouses’ residence.
   b. If the debt still cannot be satisfied, only the separate property of the spouse who contracted for or incurred the debt may be used. (If both spouses contracted for or incurred the debt, the separate property of both spouses can be used.)

E. Transcript of Judgment

1. The Magistrate Court clerk cannot issue a transcript of judgment.
2. After the time for appeal has run, the judgment creditor may file a magistrate court judgment in the district court in order to obtain a transcript of judgment. Upon filing in the district court, the district court clerk will issue a transcript of judgment for recording a lien against the real property of the judgment debtor. Magis. Ct. R. 2-804(E).
3. The Metropolitan Court clerk may issue a transcript of judgment for recording a lien against the real property of the judgment debtor upon request of the prevailing party. Metro. Ct. R. 3-804(E).
   

F. Levy and Sheriff's Sale

1. Upon receipt of the writ of execution, the sheriff calls upon the judgment debtor for payment. Magis. Ct. R. 2-801(K); Metro. Ct. R. 3-801(K).

   a. The sheriff informs the judgment debtor that his or her personal property will be seized and sold for satisfaction of the judgment.

   b. If the judgment debtor pays the sheriff in cash for the amount of judgment, the sheriff turns over the money to the judgment creditor and does not levy the property. Civil Form 4-815 (Sheriff’s Report of Sale of Seized Property).

   c. If the judgment debtor offers to pay the sheriff by check or offers to make payment within a reasonable time, the sheriff determines from the judgment creditor or attorney if levy of the property should be made.

2. Levy of property occurs when the sheriff takes personal property of the judgment debtor into custody; the sheriff takes property, not exempted by law, which is estimated to have a sale value sufficient to satisfy the judgment, as well as interest and costs since judgment. See §1.4-1(C) of this Benchbook regarding exemptions.

   a. Every effort is made by the sheriff to levy sufficient property to satisfy the judgment fully; however, when sufficient property does not exist, the sheriff levies on the available property for partial satisfaction of the judgment.

   b. The sheriff may take personal custody of the property or place it in the hands of an auctioneer.

   c. The sheriff makes a written inventory of the property taken.

   d. If the sheriff, after a diligent search, does not find any property of the judgment debtor on which he or she can levy, the execution is returned nulla bona ("no goods").

   e. The person whose goods are levied may retain or retake possession until the day of sale by giving the sheriff a bond in favor of the judgment creditor; the bond must contain sufficient security, be approved by the sheriff, in double the value of the property, conditioned for delivery of the property to the sheriff at the time and place of sale, to be named in the bond. Section 39-4-7.

3. The levied property is sold at a public auction by the sheriff.
4. The notice of sale must contain the following information, stated as briefly as possible:

   a. title of the cause through which the judgment was obtained;

   b. nature of the action;

   c. date the judgment was rendered;

   d. amount of judgment and interest, if applicable (interest is computed from the date of judgment to the date of sale);

   e. description of the property to be sold, sufficient for complete identification;

   f. date of sale;

   g. hour of sale (must be between 9:00 a.m. and sunset); and

   h. conditions of sale. Sections 39-5-1 and 39-5-3; see also Appendix B of this Benchbook for interest tables.

5. For property exceeding $300, the notice must be published for four weeks preceding the sale in a newspaper in the county in which the property is located. Section 39-5-1; see also §39-5-1.1 (regarding special procedures for perishable property).

   a. The notice must be in English or Spanish, whichever the sheriff conducting the sale determines will give the most extensive notice.

   b. If there is no newspaper printed in the county, the notice must be published in the official paper for the county and notices must be posted in six of the most public places in the county.

6. Notice of sale for personal property not exceeding $300 is made by:

   a. posting notices of the sale at least ten days prior to the sale, and

   b. posting the notices in at least five public places in the county, including one notice at the county courthouse and one notice at the place of the sale. Sections 39-5-1 and -4; see also §39-5-1.1 (regarding special procedures for perishable property).

7. On the date of the sale, the sheriff (or auctioneer) auctions the property to the highest bidder.

   a. If the sale is conducted by an auctioneer, the sheriff must be present. Sections 39-5-1 through -23.

   b. The property is sold for cash to the highest bidder. Items may be sold individually or as a unit, depending on the nature of the property.

   c. The sheriff issues a receipt or bill of sale for each item of personal property that is sold or for a group of items if sold together.

   d. The sheriff and all employees of his or her office are prohibited from making any purchase, directly or indirectly, at any execution sale. Any such purchase is void.

8. The sheriff pays the judgment creditor or attorney the amount due which was collected from the sale.
9. If the amount collected at the sale is greater than the amount of judgment, plus interest and costs since judgment, the sheriff delivers the balance to the judgment debtor.
10. If the judgment debtor posted bond but fails to present the property at the time of sale, the bond is forfeited.
11. If the debt is satisfied before all the property is sold, the remaining property is returned to the judgment debtor.
12. The Sheriff files with the court a "Sheriff's Report of Sale of Seized Property." Civil Forms 4-815 (Sheriff’s Report of Sale of Seized Property).

G. Renewal of Execution

1. The sheriff is required to return the writ of execution within 60 days from the date of issuance. Section 39-4-9.
2. If an execution has not been satisfied within 60 days, the writ may be renewed for additional periods of 60 days upon request of the judgment creditor with endorsements by the Metropolitan or Magistrate Court judge. Magis. Ct. R. 2-801(B); Metro. Ct. R. 3-801(B).
3. If any part of the execution has been satisfied, each endorsement of renewal states the remaining balance.
4. The endorsement of renewal of execution is served on all parties.

H. Examinations and Depositions to Aid Execution (Magis. Ct. R. 2-804(A)-(D); Metro. Ct. R. 3-804(A)-(D))

1. After a judgment for payment of money is filed and upon request of the judgment creditor (or successor in interest), the clerk may issue a subpoena directing any person with knowledge that will aid in enforcement or execution of the judgment, including the judgment debtor, to appear before the court for questioning. The subpoena must be served at least three (3) days prior to the date of examination.
2. Any person with information subject to discovery must give a statement about the assets of a judgment debtor. If the judgment debtor or other person refuses to give a statement voluntarily, the judgment creditor may serve a written "notice of statement," with the time and place specified, upon the person at least five (5) days prior to the date of the statement. A subpoena may be served to secure the presence of the person or the materials to be examined.
3. The judgment creditor may serve interrogatories upon or take the deposition of a person, in the usual manner for discovery and upon giving notice to every other party. However, notice to the judgment debtor is not required if the judgment debtor failed to appear for trial and the court entered a default judgment.