SENATE BILL 216

56th legislature - STATE OF NEW MEXICO - first session, 2023

INTRODUCED BY

Bill B. O'Neill and Gail Chasey

 

 

 

 

 

AN ACT

RELATING TO ACTIONS AFFECTING PROPERTY; IDENTIFYING AND LIMITING EXEMPTIONS IN CERTAIN LEGAL PROCEEDINGS; PROVIDING FOR COST-OF-LIVING ADJUSTMENTS; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

 

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

     SECTION 1. Section 35-12-2 NMSA 1978 (being Laws 1968, Chapter 62, Section 134) is amended to read:

     "35-12-2. GARNISHMENT--SERVICE ON GARNISHEE.--

          A. The garnishment shall be served on the garnishee and the defendant within the magistrate district in the manner provided by law for service of a civil summons in the magistrate court and shall order the garnishee in the action to appear before the magistrate within twenty days from the date of service to answer under oath, as of the date the garnishment was served and also as of the date of [his] the garnishee's answer:

                (1) what, if anything, [he] the garnishee is indebted to the defendant and on what account;

                (2) what, if any, personal property of the defendant is in [his] the garnishee's possession; and

                (3) what other persons, if any, within [his] the garnishee's knowledge are indebted to the defendant or have personal property of the defendant in their possession.

          B. Return on the garnishment shall be made in the manner provided by law for return on a civil summons in the magistrate court."

     SECTION 2. Section 35-12-7 NMSA 1978 (being Laws 1969, Chapter 139, Section 6, as amended) is amended to read:

     "35-12-7. GARNISHMENT--EXEMPTIONS.--

          A. Exempt from garnishment with respect to the 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) seventy-five percent of the defendant's disposable earnings for any pay period; or

                (2) an amount each week equal to forty times the [federal] highest applicable minimum hourly wage rate at the place the wages were earned. The director of the financial institutions division of the regulation and licensing department shall provide a table giving equivalent exemptions for pay periods of other than one week.

          B. As used in this section:

                (1) "disposable earnings" means that part of a defendant's wage or salary remaining after deducting the amounts [which] that are required by law to be withheld; and

                (2) "[federal] highest applicable minimum hourly wage rate" means the highest federal, state or local minimum hourly wage rate for an eight-hour day and a forty-hour week applicable at the time the wages are payable. However, it is immaterial whether the garnishee is exempt under federal, state or local law from paying the [federal] highest applicable minimum hourly wage rate.

          C. The maximum amount [which] that may be taken from a spouse's disposable earnings under both the garnishment procedure and the wage deduction procedure for the enforcement of child support is fifty percent of the spouse's disposable earnings.

          D. Amounts exempt under this section shall retain their exempt status when deposited into a personal bank account, provided that they are reasonably traceable."

     SECTION 3. Section 35-12-18 NMSA 1978 (being Laws 1968, Chapter 62, Section 147, as amended) is amended to read:

     "35-12-18. GARNISHMENT--FORM OF WRIT.--Writs of garnishment in civil actions in the magistrate court shall state whether the writ is issued in advance of or in aid of execution of judgment and shall be in substantially the following form:

"STATE OF NEW MEXICO

__________________MAGISTRATE DISTRICT, DIVISION ________

(Name), Plaintiff    )

                     )

           v.        ) CIVIL DOCKET NO. ___________

                     )

(Name), Defendant    )

                     )

(Name), Garnishee    )

                                   WRIT OF GARNISHMENT

THE STATE OF NEW MEXICO to the above-named garnishee:

     You are ordered to appear before the magistrate court located at _______________________ within twenty days from the service of this writ upon you to answer under oath the following questions, as of the date of service and as of the date of your answer:

          1. What, if anything, are you indebted to the defendant in this action and on what account?

          2. What, if any, personal property of the defendant is in your possession or under your control?

          3. What other persons, if any, within your knowledge are indebted to the defendant or have personal property of the defendant in their possession?

     Service of this writ upon you has the effect of attaching all nonexempt personal property, money, rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in your possession or under your control at the time of service and [which] that may come into your possession or under your control or be owing by you between the time of service and the time of making your answer.

     This writ was issued in (advance) (aid of execution) of judgment against the defendant. If this writ was issued in advance of judgment, it does not attach any wages or salary due from you to the defendant. If this writ was issued in aid of execution of judgment, it attaches wages or salary due from you to the defendant in excess of the greater of the following portions of the defendant's disposable earnings:

          A. seventy-five percent of the defendant's disposable earnings for any pay period; or

          B. an amount each week equal to forty times the [federal] highest applicable minimum hourly wage rate at the place the wages were earned. A table giving equivalent exemptions for pay periods of other than one week may be obtained from the [commissioner of banking] director of the financial institutions division of the regulation and licensing department. "Disposable earnings" means that part of the defendant's wage or salary remaining after deducting the amounts [which] that are required by law to be withheld. "[Federal] Highest applicable minimum hourly wage rate" means the highest federal, state or local minimum hourly wage rate for an eight-hour day or a forty-hour week. It is immaterial whether you are exempt under federal, state or local law from paying the [federal] highest applicable minimum hourly wage rate.

FINANCIAL INSTITUTION WRITS

     If you are a financial institution, the defendant who is an individual or sole proprietor has an exemption totaling two thousand four hundred dollars ($2,400) in depository and investment accounts. This writ attaches only to money in excess of two thousand four hundred dollars ($2,400). You may rely on the representations of the person executing this writ as to whether the exemption amount has already been satisfied with other accounts held by other financial institutions. This provision shall not prevent the individual or sole proprietor from claiming that additional money in depository or investment accounts is exempt under any other available exemption provided by law.

     Any wages you owe the employee in excess of two thousand four hundred dollars ($2,400) or that you may come to owe the employee in excess of that amount must be kept by you until further order of this court. This means that you shall not pay the non-exempt amounts to the plaintiff until further order from this court requiring payment.

     It is unlawful to pay or deliver to the defendant any item attached by this writ. If you fail to appear and answer as directed, or if you unlawfully dispose of any item attached by this writ, judgment may be rendered against you for the full amount of the plaintiff's claim against the defendant in this action.

     Dated _______________, [19] 20 ___________________________

                                   Magistrate"."

     SECTION 4. Section 42-10-1 NMSA 1978 (being Laws 1971, Chapter 215, Section 1, as amended) is amended to read:

     "42-10-1. EXEMPTIONS [OF MARRIED PERSONS OR HEADS OF HOUSEHOLDS].--[Personal property in the amount of five hundred dollars ($500), tools of the trade in the amount of fifteen hundred dollars ($1,500), one motor vehicle in the amount of four thousand dollars ($4,000), jewelry in the amount of twenty-five hundred dollars ($2,500), clothing, furniture, books, medical-health equipment being used for the health of the person and not for his profession and any interest in or proceeds from a pension or retirement fund of every person supporting another person is exempt from receivers or trustees in bankruptcy or other insolvency proceedings, fines, attachment, execution or foreclosure by a judgment creditor. Property exempted shall be valued at the market value of used chattels.]

          A. The following shall be exempt from receivers or trustees in bankruptcy or other insolvency proceedings, fines, attachment, execution, garnishment, levy or foreclosure by a judgment creditor:

                (1) a person's aggregate interest in household goods and furnishings, not exceeding a value of seventy-five thousand dollars ($75,000);

                (2) a person's aggregate interest in motor vehicles, not exceeding ten thousand dollars ($10,000) in value;

                (3) a person's interest in a wedding band and an engagement ring and a person's interest in additional jewelry held primarily for the use of the person, the person's spouse or any dependent of the person, not exceeding five thousand dollars ($5,000) in the aggregate for this additional jewelry;

                (4) works of art or artwork of the person or any relative of the person, not exceeding a value of two thousand five hundred dollars ($2,500) in the aggregate;

                (5) tools, equipment, implements, professional books, instruments, inventory, supplies and materials reasonably necessary for use in the person's trade, profession, business or occupation, or that of the person's spouse, not exceeding fifteen thousand dollars ($15,000) in the aggregate;

                (6) the person's right to receive:

                     (a) social security benefits;

                     (b) veteran's benefits;

                     (c) disability, illness, unemployment or workers' compensation benefits;

                     (d) public benefits such as medicaid, medicare, food stamps or other aid from a government public assistance program;

                     (e) alimony, family or domestic support or separate maintenance to the extent reasonably necessary for the support of the person or any dependent of the person; and

                     (f) payment pursuant to a stock bonus, pension, profit-sharing individual retirement account, annuity or similar plan or contract on account of illness, disability, death or length of service, to the extent reasonably necessary for the support of the person or any dependent of the person, unless such plan or contract does not qualify pursuant to Section 401(a), 403(a), 403(b) or 408 of the Internal Revenue Code of 1986;

                (7) refundable federal and state tax credits;

                (8) exempt wages as defined by Section 35-12-7 NMSA 1978;

                (9) any stimulus payment held by or payable to the person or the person's dependents in any form;

                (10) an interest in or proceeds from a pension, individual retirement account, annuity, profit-sharing plan and any other retirement account;

                (11) an individual