N.M. R. Civ. P. Magist. Ct. 2-702

As amended through November 1, 2024

Rule 2-702 - Default

A.Failure to respond to summons. If the defendant fails to appear at the hearing date set forth in the summons or fails to file an answer or other responsive pleading within the time period set forth in the summons, and if the plaintiff proves by an appropriate return that proper service was made upon the defendant, the court may enter judgment for the plaintiff for the amount due, including interest, costs, and other items allowed by law. The court may require evidence as to any fact before entering default judgment. At a minimum, before entering a default judgment, the court shall require the plaintiff to allege sufficient facts to demonstrate the following:

(1) the plaintiff is a proper party to bring the lawsuit;

(2) the defendant is a proper party;

(3) a legal relationship exists between the plaintiff and the defendant that forms the basis of the lawsuit; and

(4) the amount of the damages, debt, or other relief requested, including principal, interest, and all other charges or costs. A copy of the default judgment shall forthwith be mailed by the clerk of the court to each party against whom judgment has been entered. The clerk shall endorse on the judgment the date of mailing.

In cases controlled by Rule 2-201(E) NMRA, before entry of default judgment the court shall determine that the party seeking relief has stated a claim on which relief can be granted, has complied with Rules 2-201(E)(2) and 2-401(D) NMRA, and has substantially complied with the requirements of Form 4-226 NMRA.

B.Failure to appear at trial. Failure to appear at the time and date set for trial shall be grounds for entering a default judgment against the nonappearing party.

C.Setting aside default. For good cause shown, within thirty (30) days after entry of judgment and if no appeal has been timely taken, the court may set aside a default judgment.

N.M. R. Civ. P. Magist. Ct. 2-702

As amended by Supreme Court Order No. 16-8300-032, effective for all cases pending or filed on or after12/31/2016; as amended by Supreme Court Order No. 20-8300-10 005, effective for all cases filed on or after 12/31/2020.

Committee commentary. - In 2016, this rule was amended to clarify what information the plaintiff must provide to obtain a default judgment. The plaintiff may provide the necessary information in the complaint or as attachments to the complaint, or in a motion for default judgment. If the plaintiff does not provide adequate information in the complaint or motion for default judgment, the court should hold a hearing before entering a default judgment. When determining whether to grant a default judgment, the court has discretion to rely on whatever documentation or evidence the court deems sufficient.

[Adopted by Supreme Court Order No. 16-8300-032, effective for all cases pending or filed on or after December 31, 2016.]

Committee commentary. - In 2016, the New Mexico Supreme Court approved amendments to Rules 1-009, 1-017, 1-055, and 1-060 NMRA, and created a new civil complaint form for consumer debt claims, Form 4-226 NMRA, for use in the district courts.

Paragraph A of this rule was amended in 2020 to provide additional protections to consumers in consumer debt collection cases. See Rule 2-201 NMRA, Committee commentary. In addition, Rules 2-201, 2-401, 2-703, 3-201, 3-401, 3-702, and 3-704 NMRA, as well as Form 4-226 NMRA, were amended in 2020 to align the magistrate and metropolitan court rules for consumer debt claims with the district court rules.

Paragraph A references Rule 2-201(E)(2) NMRA, which requires a party seeking relief in a consumer debt claim to serve with the pleading, and file with the magistrate court, the written instrument on which the party based its claim. If the party seeking relief fails to comply with this provision, the magistrate court shall not enter a default judgment without the party establishing good cause for its failure to comply.

[As amended by Supreme Court Order No. 20-8300-005, effective for all cases filed on or after December 31, 2020.]

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-032, effective December 31, 2016, set forth the additional information that a plaintiff must provide before obtaining a default judgment, made certain stylistic changes, and added the Committee commentary; in Paragraph A, in the heading, deleted "Entry at time of appearance" and added "Failure to respond to summons", in the introductory paragraph, after "fails to appear", deleted "or has not filed" and added "at the hearing date set forth in the summons or fails to file", after "an answer", added "or other responsive pleading", after "within the time", deleted "prescribed by Rule 2-202 NMRA" and added "period set forth in the summons", after "defendant, the", deleted "magistrate" and added "court", after "The", deleted "magistrate" and added "court", after the next period, added the last sentence of the introductory paragraph and Subparagraphs A(1) through A(4); in Paragraph B, in the heading, deleted "At time of trial" and added "Failure to appear at trial"; and in Paragraph C, after "taken, the", deleted "magistrate" and added "court".

For form on default judgment, see Rule 4-703 NMRA. For form on motion to set aside default judgment, see Rule 4-704 NMRA. For form on order setting aside default judgment and giving notice of trial date, see Rule 4-705 NMRA. Am. Jur. 2d, A.L.R. and C.J.S. references. - 46 Am. Jur. 2d Judgments § 265 et seq. Judgment by consent, confession or default of principal as affecting sureties whose obligation is conditioned upon judicial determination of liability or rights of principal, 51 A.L.R. 1489. Successful defense by one codefendant, or a finding for "defendants," as inuring to benefit of defaulting defendant, 78 A.L.R. 938. What amounts to waiver by plaintiff of right to enter default judgment against defendant, or of the default itself after entry, 124 A.L.R. 155. Doctrine of res judicata as applied to judgment by default, 128 A.L.R. 472, 77 A.L.R.2d 1410. Mistaken belief or contention that defendant had not been served, or had not been legally served, with summons, as ground for setting aside default judgment, 153 A.L.R. 449. Validity, construction and application of statutes providing for entry of default judgment by clerk without intervention of court or judge, 158 A.L.R. 1091. Failure of complaint to state cause of action for unliquidated damages as ground for dismissal of action at hearing to determine amount of damages following defendant's default, 163 A.L.R. 496. Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179. Necessity of taking proof as to liability against defaulting defendant, 8 A.L.R.3d 1070. Appealability of order setting aside, or refusing to set aside, default judgment, 8 A.L.R.3d 1272. Defaulting defendant's right to notice and hearing as to determination of amount of damages, 15 A.L.R.3d 586. Opening default or default judgment claimed to have been obtained because of attorney's mistake as to time or place of appearance, trial, or filing of necessary papers, 21 A.L.R.3d 1255. Failure to give notice of application for default judgment where notice is required only by custom, 28 A.L.R.3d 1383. 49 C.J.S. Judgments §§ 195 to 242.