46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO PROPERTY; CLARIFYING THE REQUIREMENTS PRIOR TO THE ISSUANCE OF A WRIT OF REPLEVIN.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 42-8-5 NMSA 1978 (being Laws 1907, Chapter 107, Section 1 (232), as amended) is amended to read:

"42-8-5. AFFIDAVIT.--

A. Except as provided in Subsection B of this section, before the writ of replevin is issued, the defendant shall be given notice and an opportunity to be heard and the plaintiff or [some] a creditable person in his stead shall file in the district court an affidavit stating that:

[A. that] (1) the plaintiff is lawfully entitled to the possession of the property mentioned in the complaint along with specific facts that support the truth of the plaintiff's statement; and

[B. that the same] (2) the property was wrongfully taken or wrongfully detained by the defendant.

B. The writ of replevin may be issued before the defendant is given notice and an opportunity to be heard only if:

(1) the requirements provided in Subsection A of this section are satisfied and if the plaintiff or some credible person in his stead files an affidavit in the district court stating [C.] that the plaintiff has reason to believe that the defendant may conceal, dispose of or waste the property or the revenues [therefrom] from it or remove the property from the jurisdiction during the pendency of the action along with specific facts that support the truth of the plaintiff's statement;

(2) the plaintiff has complied with all applicable rules of civil procedure for the district courts, except that the security requirement in those rules shall be satisfied by the posting of the bond as required pursuant to Section 42-8-6 NMSA 1978; and

(3) a hearing to determine whether the writ was properly issued is scheduled before the issuing court within ten days after issuance of the writ; and prior to the hearing, the defendant is served with notice of the hearing and a copy of the writ of replevin in the same manner as is required for service of a summons pursuant to the rules of civil procedure for the district courts

[D. that the right of action accrued within one year; and

E. specific facts from which it clearly appears that the above allegations are justified]."

Section 2. Section 42-8-16 NMSA 1978 (being Laws 1975, Chapter 249, Section 4) is amended to read:

"42-8-16. FORM OF AFFIDAVIT.--Affidavits for writs of replevin shall be in substantially the following form:

"State of New Mexico

County of __________________________________

(Name), Plaintiff       )

                        )

v.                         Civil Docket No.__________

                       )

(Name), Defendant       )

AFFIDAVIT IN REPLEVIN

I, (plaintiff or attorney) , being duly sworn, state that (plaintiff) is lawfully entitled to the possession of (property) ; that the same was wrongfully taken or wrongfully detained by (defendant) . Facts in support of this statement are: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

or that (plaintiff) has reason to believe that (defendant) may conceal, dispose of or waste the property or the revenues therefrom or remove the property from the jurisdiction during the pendency of the action; that the right of action originated within one year; and that the following facts, from which it clearly appears that the above allegations are justified, are true:              

             Sworn______________________

                   Plaintiff

Approved:

________________________________________

District Court Judge."."