New Mexico Procedural Requirements for Wage Garnishment

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New Mexico Procedural Requirements

After filing the judgment, the clerk shall issue a writ of garnishment after the judgment creditor has filed with the clerk an application for a writ of garnishment which includes the judgment debtor's last known address and an affidavit Statuteing that: the judgment creditor has a judgment against the judgment debtor, giving the date and amount of the judgment; after diligent inquiry to the best of the judgment creditor's knowledge, the judgment debtor has insufficient property in the judgment debtor's possession within this Statutee subject to execution to satisfy the judgment (this allegation is not necessary if the garnishment is for child support or alimony); the garnishee is indebted to the judgment debtor, or holds personal property belonging to the judgment debtor; and the debt is not exempt from garnishment.

Only when the judgment debtor is a natural person, and the garnishee holds money or property other than wages due the judgment debtor, the following additional procedures shall be followed upon issuance of the writ of garnishment: for each judgment debtor, the judgment creditor shall serve the garnishee with a copy of the application for writ of garnishment, the writ of garnishment, a copy of the notice of right to claim exemptions and three copies of the claim of exemption form; on or before the fourth business day following service of the writ of garnishment, the garnishee shall mail to each named judgment debtor or the judgment debtor's attorney of record, the application for the writ, writ of garnishment, notice of right to claim exemptions, and three copies of the claim of exemption form.

A writ of garnishment shall be served wherever the garnishee may be found in the Statutee of New Mexico. A writ of garnishment shall be made and return of service filed in the same manner as provided by Rule 1004 for service of summons and complaint (i.e., personal service). N.M. R. Civil. P. 1065.1, 2801, 3801 [1]. Service of a garnishment on the garnishee has the effect of attaching all personal property, money, wages or salary in excess of the amount exempt under _ 35127 [2], rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in the garnishee's possession or under his control at the time of service of the garnishment or which may come into his possession or under his control or be owing by him between the time of service and the time of making his answer. After service of a garnishment on the garnishee, it is unlawful for the garnishee to pay to the defendant in the action any debt or to deliver to him any personal property attached by the garnishment. N.M. Statute. Ann. _ 35123.

The judgment creditor may, in aid of the judgment or execution, examine any person, including the judgment debtor, touching the property of the judgment debtor and his ability to satisfy such judgment. For the purpose of such examination, the clerk of the court shall, upon request of the judgment creditor, issue a subpoena directing the person to be examined to appear before the court at a time and place therein Statuteed for such examination. Such subpoena may be served in the same manner as other subpoenas. In lieu of such an examination, the judgment creditor may take the deposition of the person whom he desires to examine. In further aid of judgment or execution, the judgment creditor may obtain discovery from any person, including the judgment debtor. Where such judgment was obtained by default, notice of taking depositions need not be given to the judgment debtor. In all other cases, notice of taking depositions shall be given to the judgment debtor. N.M. R. Civil. P. 1069, 2803, 3803.

Interest Rate at which Judgments Accrue

Interest shall be allowed on judgments and decrees for the payment of money from entry and shall be calculated at the rate of eight and threequarters percent per year; unless the judgment is rendered on a written instrument having a different rate of interests, in which case interest shall be computed at a rate no higher than specified in the instrument or the judgment is based on tortious conduct, bad faith, intentional or willful acts in which case interest shall be computed at the rate of fifteen percent. N.M.S.A. _ 5684. Applicable Forms N.M. R. Civil. P., Forms 4503 and 4805 to 4809. 1

The Statutee of New Mexico has a separate set of rules for each of its different courts, the district courts, the magistrate courts, and the metropolitan courts. Fortunately, the rules for the enforcement of a money are judgment are nearly identical except that the magistrate court rules and the metropolitan court rules provide for service by mail (i.e., by mailing the required documents to the person to be served by firstclass mail, postage prepaid along with a return envelope, postage prepaid, addressed to the sender). See N.M. R. Civil. P. 2202, 3202.2

Exempt from garnishment with respect to enforcement of an order or decree for child support is fifty percent of the defendant's disposable earnings for any pay period. Exempt from garnishment in all other situations is the greater of the following portions of the defendant's disposable earnings: (1) seventyfive percent of the defendant's disposable earnings for any pay period; or (2) an amount each week equal to forty times the federal minimum hourly wage rate. N.M. Statute. Ann. _ 35127