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

1.5-4 Bankruptcy

A. Overview of the Bankruptcy Process

1. The bankruptcy process allows a debtor to deal with his or her outstanding debts in a unified way, paying what is possible and discharging forever any obligation to pay the rest.
2. The filing of a bankruptcy petition in the United States Bankruptcy Court stops all collection actions brought by creditors so that the debtor’s obligations can be dealt with as a whole. This stop is referred to as an automatic stay; it goes into effect automatically upon the filing of a bankruptcy petition. The automatic stay applies whether or not a creditor has actual notice of the bankruptcy. This prevents the debtor from using any remaining assets to favor one creditor over another, and protects the debtor from a race among creditors to collect while they can.
3. The debtor is allowed to retain certain property that is “exempt” from the bankruptcy process. In most bankruptcy cases, all other property is turned over to a trustee who pays off the creditors in the order of their priority. In “no assets” cases, the debtor -- after claiming his or her deductions -- has no assets to turn over to a trustee. Once all assets are distributed, or the trustee determines there are no assets to distribute, the debtor is “discharged” from bankruptcy and the case is over. The debtor has no further obligation to pay off the debts that are discharged during the bankruptcy process, and no creditor may attempt to collect them.
4. The debtor has four options for filing under the Bankruptcy Code:

   a. Chapter 7 is the simplest; the debtor simply turns over all non-exempt assets to the trustee, walks away from his or her debts, and starts life over.

   b. Under Chapter 13, a debtor calculates the amount of net disposable monthly income that is available to pay off debts after meeting his or her family’s living expenses. The debtor then submits a plan to use that disposable income to pay off his or her debts in whole or in part. The plan lasts from three to five years. The debtor pays the designated amount to the Chapter 13 trustee who in turn pays off creditors according to the terms of the plan, which may provide creditors with less than their full claim. When the plan is completed, the debtor receives a discharge from all unpaid debts.

   c. Chapter 12 is a modified version of Chapter 13 designed for family farmers.

   d. Chapter 11 is the process by which businesses reorganize their debts so that they can continue to exist; it depends upon successful negotiations with the largest creditors. Chapter 11 can be used by individuals, but rarely is.

5. The Bankruptcy Code has a number of exceptions, both to the automatic stay and to the principle that all debts can be discharged:

   a. Criminal cases are not covered by the automatic stay. They continue as if a bankruptcy had not been filed.

   b. Traffic offenses are considered criminal cases. Fines and fees imposed in criminal cases may not be discharged in the course of a bankruptcy.

B. Effect of Bankruptcy on Civil Court Cases

1. All civil case proceedings in magistrate and metropolitan court stop during the pendency of the bankruptcy. The federal Bankruptcy Code in 11 U. S.C. §362(a)(1) provides that “a petition . . . operates as a stay, applicable to all entities, of: (1) the commencement or continuation . . . of a judicial . . . action or proceeding against the debtor that was commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.” Consequently, all civil actions against a person who has filed for bankruptcy are automatically halted. (There are exceptions to the automatic stay, but they are not relevant to the magistrate and metropolitan courts.)
2. The automatic stay supercedes any garnishment order. All garnishment withholding ends when the employer is notified of the bankruptcy filing. The debtor should, but might not, file a notice of the bankruptcy in the court case in which the court entered the garnishment order. Whether or not such a notice is filed, the garnishment is automatically ended by the filing of the bankruptcy.
3. The magistrate or metropolitan court will not receive notice of the filing of a bankruptcy from the bankruptcy court in this situation. The magistrate or metropolitan court must rely upon the parties to inform it that a bankruptcy petition has been filed. The Notice of Bankruptcy Case form at the end of this section is adequate evidence of the filing of a bankruptcy petition.
4. A party to a civil action can obtain an order from the bankruptcy court lifting the stay with respect to that case. The party must file a Motion for Relief from the Automatic Stay in the bankruptcy court. The bankruptcy court may grant the motion if, for example, the court determines a debt is exempt from discharge. If a magistrate or metropolitan judge is given a copy of an order granting relief from the stay, which authorizes the continuation of the specific lawsuit pending in the magistrate or metropolitan court, the civil case may proceed as if the bankruptcy petition had not been filed.
5. As soon as the bankruptcy case has ended, the civil case in the magistrate or metropolitan court may recommence. The Discharge form at the end of this section is the document that signifies that the bankruptcy has ended. In most cases, the bankruptcy proceeding will have extinguished the debt or claim that was the basis of the magistrate court case. If so, it is unlikely that the plaintiff will pursue the case further. If the plaintiff does ask the court to reschedule the case, the debtor will raise the bankruptcy discharge as a defense to the case, if the matter was resolved during the bankruptcy.
6. In some cases, the bankruptcy will not have resolved the matter at issue in the case. In that event, once the discharge has been filed, the magistrate or metropolitan court case may once again proceed.
7. A typical “no asset” Chapter 7 bankruptcy case will last no more than six months. A Chapter 7 case with assets to be distributed may last for years. However, as soon as the debtor receives a discharge, the automatic stay no longer remains in effect, and a previously filed civil case may recommence. A Chapter 13 case will last from three to five years before a discharge is issued. Any civil case pending against the debtor must be suspended until the court has issued the discharge.
8. A judge who continues to hold proceedings in a civil case after he or she has notice that one of the parties has filed for bankruptcy protection may be held in contempt of court by the bankruptcy judge.
9. The way in which these matters are handled in FACTS™ is as follows: The clerk dockets whatever document the debtor files notifying the court of the bankruptcy filing as a “notice of bankruptcy” and places the case in “bankruptcy status” case status. When the case is no longer in bankruptcy, the clerk either returns the case to active status (if the parties continue to litigate the matter) or enters a dismissal and closes the case.
10. When a case has been in “bankruptcy status” for six months, the court should write to the plaintiff advising that there has been no activity in the case for six months and that the court intends to dismiss the case without prejudice unless the plaintiff gives a good reason not to. If the plaintiff responds that he or she is seeking relief from the bankruptcy stay or otherwise plans to pursue the matter at the close of the bankruptcy, the court should leave the case in “bankruptcy status” and check with the plaintiff again every six months. If the plaintiff does not respond, the court should dismiss the complaint without prejudice for failure to prosecute and close the case.

C. Effect of Bankruptcy on Criminal Court Cases

1. All proceedings in pending or new magistrate and metropolitan court criminal cases continue as scheduled during the pendency of the bankruptcy. The bankruptcy filing has no effect on magistrate or metropolitan criminal cases. The federal Bankruptcy Code in 11 U. S.C. § 362(b)(1) excepts from the automatic stay “the commencement or continuation of a criminal action or proceeding against the debtor.”
2. A magistrate or metropolitan judge should proceed with any pending or new criminal case against a person who has filed for bankruptcy protection.

D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

1. All action to collect criminal fees and fines stops during the pendency of the bankruptcy, but the fees and fines are not discharged by the bankruptcy. When the bankruptcy ends, the court can, and should, collect the full amount of fines and fees that were owing at the time the bankruptcy was filed.
2. A person who owes fees or fines to a magistrate or metropolitan court usually will list those debts on the schedules filed with the bankruptcy petition. The court will then get a Notice of Bankruptcy Case. It must immediately cease all attempts to collect the fees and fines owed. The Notice of Bankruptcy Case does not include the magistrate or metropolitan court case number. It is the court’s obligation to check its records to identify all outstanding collection processing involving the bankruptcy debtor.
3. Upon receiving a Notice of Bankruptcy Case, the court should make the same FACTS™ entries set forth above in the discussion of civil cases.
4. If the court’s collection activities are conducted by the AOC Magistrate Court Division Warrant Enforcement staff, the court should immediately call that staff and alert them to the name of the defendant and the case number or numbers in which he or she is involved. Any court that has requested a tax intercept for a person filing bankruptcy should follow the same procedure of calling the AOC immediately. After the telephone call, mail a copy of the Notice of Bankruptcy Case to the AOC Warrant Enforcement staff. The Warrant Enforcement staff will have the obligation of ceasing all further enforcement actions.
5. The Notice of Bankruptcy Case is accompanied by a Proof of Claim. Do not complete and file this form. Just keep it in the case file. A proof of claim is used to verify the amount of the bankrupt’s indebtedness for purposes of distribution of any assets that exist among the creditors. Because a claim for payment of a fee or fine in a criminal case is nondischargeable, there is no reason for the magistrate or metropolitan court to participate in the proof of claim process. There is some case law to the effect that a party who files a proof of claim subjects itself to the jurisdiction of the Bankruptcy Court for other purposes. The magistrate or metropolitan court should not do so; it should merely wait for the bankruptcy process to run its course and then collect all fees and fines still owing.
6. Once the court has entered a Discharge, the Magistrate or Metropolitan court should recommence its collection efforts. Section 523(a)(7) of the Bankruptcy Code provides: “A discharge . . . does not discharge an individual debtor from any debt . . . (7) to the extent such debt is for a fine, penalty, or forfeiture payable to or for the benefit of a governmental unit . . .” So, a bankruptcy will never extinguish the debtor’s obligation to pay magistrate or metropolitan court fees and fines. It merely prevents the court from collecting them during the pendency of the bankruptcy case.
7. Upon receiving notice of bankruptcy, the court may convert a fine and fees to community service, at the debtor’s request or with the debtor’s consent.
8. The court will receive a copy of the Discharge, similar to the attached order. That is the signal that the court should begin again to collect all outstanding fees and fines. If the enforcement efforts are conducted by the Magistrate Court Division Warrant Enforcement staff, notify that staff of the filing of the Discharge.
9. If the bankruptcy is filed under Chapter 7, the length of time during which the court suspends collection is relatively short. If the case is a Chapter 13 case, it will last three to five years. It is possible that the debtor’s Chapter 13 plan will provide for the payment of the fees and fines owed to the magistrate or metropolitan court. If the court receives a payment from the Standing Chapter 13 trustee on behalf of the debtor, it should accept and receipt the payment. Any amounts not paid through the Chapter 13 plan will be due and owing at the end of the plan, when the debtor receives a discharge.

Additional information on the bankruptcy system is available on the web site for the U.S. Bankruptcy Court for the District of New Mexico, at www.nmcourt.fed.us/bkdocs/.