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§ RULE 1-065. WRITS ISSUED BY DISTRICT COURTS

Codes > New Mexico Rules of Civil Procedure for the District Courts > Article 8 > RULE 1-065.

RULE 1-065. WRITS ISSUED BY DISTRICT COURTS

A. Execution, Possession and Attachment. Writs of execution, writs of possession issued pursuant to Section 42-4-12 NMSA 1978 and writs of attachment directed to land or an interest in land (other than rents, issues and profits thereof) may be issued by the clerk of the district court in proper cases without endorsement of approval of the district judge.

B. Approval. All writs issued by the district courts other than those enumerated in Paragraph A of this rule and Rules 1-065.1 and 1-065.2 may be issued only upon the express written approval of the district judge endorsed on the writ. All writs shall be signed by the clerk or deputy clerk of the district court and shall bear the court seal. In instances where written approval of the district judge is required, the procedure set out in Paragraphs C through I of this rule shall be followed.

C. Application. Application for the writ shall be by verified petition filed with the district court accompanied by the proposed form of writ with a copy of the petition appended as an exhibit.

D. Contents. The petition shall set forth the following:

(1) a statement of the facts showing venue and jurisdiction of the court in which the writ is sought, and the right or standing of the filing party;

(2) if the respondent is a public officer, board or tribunal purporting to act in the discharge of official duties, the names of the real parties in interest;

(3) the grounds upon which the petition is based and the facts required by the substantive law for issuance of the writ, stated in concise form; and

(4) a concise statement of the relief sought.

E. Form. The writ shall be in lieu of summons. The form of writ shall be in the name of the State of New Mexico, shall contain the caption of the case, the name and address of petitioner's attorney, if any, otherwise petitioner's address, shall direct the respondent or respondents to serve and file a responsive pleading within a time specified in the writ, and, if a date for hearing is set, the date, time and place when hearing will be held. The writ shall further state in concise form the relief sought, but other matters set forth in the petition, copy of which is annexed to the writ, need not be included in the writ. If the date for service of a responsive pleading and the date for hearing are the same, the writ shall so state. No peremptory writ shall be issued unless a date, not later than ten (10) days after its issuance, is set for a hearing at which it may be challenged, and any hearing date so fixed may be advanced upon motion of any respondent.

F. Responsive Pleading; Hearing. The date set in the writ for responsive pleading or hearing shall be not earlier than seven (7) days following date of issuing the writ unless, from the verified petition or affidavit filed with the petition, the court shall determine that unreasonable loss or hardship is likely to result unless an earlier date is set, in which event determination of the court specifying the particular loss or hardship must be set forth in the writ.

G. Seizure of Property. Prejudgment writs of attachment may be issued upon application of a party pursuant to Sections 42-9-1 through 42-9-39 NMSA 1978. No prejudgment writ may be issued directing the immediate seizure, sequestration or attachment of personal property, tangible or intangible, and no peremptory writ may be issued, without written or oral notice to the adverse party unless:

(1) it clearly appears from specific facts shown by affidavit or the verified petition that immediate and irreparable injury, loss or damage will result to the petitioner before the adverse party can be heard in opposition;

(2) if the party is a natural person, notice of a right to claim exemptions has been given in accordance with Paragraph J of this rule; and

(3) the petitioner's attorney certifies to the court in writing the efforts, if any, that have been made to give notice and the reasons supporting the petitioner's claims that notice should not be required. Further, no such writ may be issued except upon the giving of security, in amount and form satisfactory to the court, for the payment of such costs and damages as may be incurred or suffered by the adverse party; provided, however, that for good cause shown and to be recited in the writ, the court may waive the furnishing of security unless the same is otherwise required by law.

H. Service. Service of a copy of the writ, with copy of the petition annexed, shall be made upon all adverse parties forthwith. For purposes of this paragraph the term “adverse parties” shall include the real parties in interest required to be named in the petition pursuant to Subparagraph (2) of Paragraph D of this rule.

I. Defenses; Service. In cases where the date set for serving a responsive pleading or for hearing is less than thirty (30) days after service all defenses, including those otherwise available by motion, shall be included in one single pleading and, if service by mail is utilized, service shall not be deemed complete until three (3) days after mailing. In all other cases the rules generally applicable to pleadings and service thereof shall govern.

J. Exemptions; How Claimed. Exemptions of personal property provided by Sections 42-10-1 to 42-10-7 NMSA 1978 also apply to attachment proceedings. If the party is a natural person, notice of a right to claim exemptions shall be given. A claim of exemption may be filed and served in the same manner and time as required in execution proceedings. The petitioner may dispute the claimed exemption in the same manner and time provided for a dispute on a claim of exemption in an execution proceeding. If the petitioner disputes the claimed exemption, the court shall proceed in the manner provided for hearings on claims of exemptions in execution proceedings.