Personal property other than money 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 only himself is exempt from receivers or trustees in bankruptcy or other insolvency proceedings, executors or administrators in probate, fines, attachment, execution or foreclosure by a judgment creditor. Property exempted shall be valued at the market value of used chattels.
History: 1953 Comp., § 24-5-2, enacted by Laws 1971, ch. 215, § 2; 1979, ch. 182, § 2; 1981, ch. 113, § 2; 1983, ch. 69, § 2.
ANNOTATIONSRepeals and reenactments. — Laws 1971, ch. 215, § 2, repealed 24-5-2, 1953 Comp., relating to unmarried woman holding certain property exempt from execution, etc., and enacted a new section.
The 1983 amendment, effective July 1, 1983, inserted "in the amount of four thousand dollars ($4,000), jewelry in the amount of twenty-five hundred dollars ($2,500)" in the first sentence and substituted "himself" for "themselves," also in the first sentence.
The 1981 amendment, effective March 21, 1981, inserted "tools of the trade in the amount of fifteen hundred dollars ($1,500)" and deleted "tools of the trade" preceding "books" near the beginning of the first sentence.
The 1979 amendment substituted "is exempt" for "may be held exempt" near the middle of the first sentence and substituted "exempted" for "to be exempted" near the beginning of the second sentence.
Constitutionality. — New Mexico's post-judgment execution statutes are constitutionally deficient because they do not require that sufficient notice be given. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).
Effect of creation of exemptions. — By creating exemptions from execution, New Mexico has granted judgment debtors a property interest in retaining their exempt property. While the state need not grant such exemptions, once given, the property rights they create are entitled to due process protection. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).
Section construed. — This section applies to all debtors who are not married or heads of household who support only themselves, even if their income falls short of paying for all household expenses. In re Bushey, 559 B.R. 766 (Bankr. D. N.M. 2016).
Full or complete support is not required. — Where debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code (11 U.S.C.), and where creditors asserted debtor could not claim exemptions under this section because his live-in girlfriend paid for the majority of the household expenses and debtor therefore did not support himself, debtor was entitled to claim exemptions under this section because this section applies to all debtors who are not married or heads of household who support only themselves, even if their income falls short of paying for all household expenses. There is no language in this statute that requires full or complete support as a condition to being able to claim the exemption. In re Bushey, 559 B.R. 766 (Bankr. D. N.M. 2016).
Waiver of exemption. — Where parties to a divorce action entered into a marital settlement agreement in which they placed an annuity, money purchase plan, profit sharing plan, and individual retirement accounts under the control of a receiver to pay personal taxes and community debts, the parties waived the statutory exemption. Gordon v. Gordon, 2011-NMCA-044, 149 N.M. 783, 255 P.3d 361.
Exemptions not available for child support liens. — Statutory exemptions for debtors in foreclosure actions set forth in this article are unavailable to a parent as against a lien for child support obligations under Section 40-4-15 NMSA 1978. D'Avignon v. Graham, 1991-NMCA-125, 113 N.M. 129, 823 P.2d 929.
Self-induced insolvency is not protected under the New Mexico exemption statutes. Albuquerque Nat'l Bank v. Zouhar, 10 Bankr. 154 (Bankr. D.N.M. 1981).
Wholesale sheltering of assets not protected. — While a bankrupt is entitled to adjust his affairs so that some planning of one's exemptions under bankruptcy is permitted, a wholesale sheltering of assets that otherwise would go to creditors is not permissible. Albuquerque Nat'l Bank v. Zouhar, 10 Bankr. 154 (Bankr. D.N.M. 1981).
Exemption for furniture. — This section does not set a dollar limit on furniture so that a lien on furniture may be avoided under the federal bankruptcy law regardless of amount, provided that the furniture falls within the bankruptcy statute. Reid v. ITT Fin. Servs., 121 Bankr. 875 (Bankr. D.N.M. 1990).
Property interest in exempt property. — By creating exemptions from execution, New Mexico granted judgment debtors a property interest in retaining their exempt property, which is entitled to due process protection. Aacen v. San Juan Cnty. Sheriff's Dep't, 944 F.2d 691 (10th Cir. 1991).
Factors in determining voidable transfers. — The noninclusive enumeration of factors contained in Sections 56-10-18 and 56-10-19 NMSA 1978 are to be considered when determining whether the funds that ordinarily would be exempt from attachment under this section and Section 42-10-3 NMSA 1978 should be set aside as the result of a voidable transfer. Dona Ana Sav. & Loan Ass'n v. Dofflemeyer, 1993-NMSC-031, 115 N.M. 590, 855 P.2d 1054.
Funds are not automatically protected. — The conversion of nonexempt funds into funds that are ordinarily exempt under this section and Section 42-10-3 NMSA 1978 are not automatically protected from attachment by creditors without an analysis of whether the transfer served the underlying purpose of the exemption statutes and was not in furtherance of an intent to defraud creditors. Dona Ana Sav. & Loan Ass'n v. Dofflemeyer, 1993-NMSC-031, 115 N.M. 590, 855 P.2d 1054.
Law reviews. — For note, "Debtor Exemptions in New Mexico," see 6 Nat. Resources J. 467 (1966).
For comment, "A Comparison of State and Federal Exemptions: 11 U.S.C. § 101-1330 (Supp. II 1978)," see 10 N.M.L. Rev. 431 (1980).
For note, "Matching the Historic Legal Principles of New Mexico's Exemption Laws to the Modern Identity of Annuities: Dona Ana Savings & Loan Ass'n v. Dofflemeyer," see 24 N.M.L. Rev. 365 (1994).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 31 Am. Jur. 2d Exemptions §§ 64 to 137, 144 to 171.
Employee retirement, pension benefits as exempt from garnishment, attachment, levy, execution or similar proceedings, 93 A.L.R.3d 711.
Individual retirement accounts as exempt property in bankruptcy, 133 A.L.R. Fed. 1
35 C.J.S. Exemptions §§ 46, 52, 56.