Section 42-10-13 - Claim of exemption or priority

A. Any person desiring to claim that property is exempt from execution or garnishment or is subject to execution only after other property is used to satisfy a debt under the provisions of Sections 40-3-10 and 40-3-11 NMSA 1978 shall file a claim of exemption or priority in the appropriate court; provided that the time to file that claim of exemption shall not be less than ten days after the filing of a writ of execution as set forth in New Mexico Rule of Civil Procedure 1-065.1 [1-065.1 NMRA].B. A notice of the right to claim exemption to garnishment, execution, levy, attachment or foreclosure or a form to file or claim that exemption shall be provided by the creditor to the person whose property is subject to garnishment, execution, levy, attachment or foreclosure, and that notice shall contain a complete list of exemptions provided by the law. History: 1953 Comp., § 24-7-1, enacted by Laws 1975, ch. 246, § 1; 1978 Comp., § 42-10-13; 2023, ch. 104, § 9. ANNOTATIONSCross references. — For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively.

9. ANNOTATIONSCross references. — For rules governing garnishment and writs of execution in the district, magistrate, and metropolitan courts, see Rules 1-065.1, 2-801, and 3-801 NMRA, respectively. For form for claim of exemptions on executions, see Rule 4-803 NMRA. For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA. For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA. For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA. For form for claim of exemption from garnishment, see Rule 4-809 NMRA. The 2023 amendment, effective July 1, 2023, included garnishment within the exemption provisions, provided that the time to file a claim of exemption or priority shall not be less than ten days after the filing of a writ of execution, and required the creditor to provide a notice of the right to claim an exemption or a form to file or claim that exemption to the person whose property is subject to garnishment, execution, levy, attachment or foreclosure; in Subsection A, after the first occurrence of 'execution', added 'or garnishment', and after 'appropriate court', deleted

perty is subject to garnishment, execution, levy, attachment or foreclosure; in Subsection A, after the first occurrence of 'execution', added 'or garnishment', and after 'appropriate court', deleted 'or the right to claim such exemption is waived as between a spouse and the creditor' and added 'provided that the time to file that claim of exemption shall not be less than ten days after the filing of a writ of execution as set forth in New Mexico Rule of Civil Procedure 1-065.1'; and added Subsection B.Applicability. — Laws 2023, ch. 104, § 13 provided that the provisions of Laws 2023, ch. 104 apply to actions filed on or after July 1, 2023. Constitutionality. — The post-judgment execution statutes are unconstitutional as not providing adequate notice of allowable exemptions and the right to a hearing. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).