N.M. R. Civ. P. Magist. Ct. 2-401

As amended through November 1, 2024

Rule 2-401 - Parties; capacity

A.Real party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, personal representative, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the use or benefit of another shall be brought in the name of the state. Where it appears that an action, by reason of honest mistake, is not prosecuted in the name of the real party in interest, the court may allow a reasonable time for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

B.Capacity to sue or be sued. The capacity of an individual, including those acting in a representative capacity, to sue or be sued shall be determined by the law of this state. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized, unless some statute of this state provides to the contrary.

C.Minors or incompetent persons. When a minor or incompetent person has a representative, such as a general guardian, or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. If a minor or incompetent person does not have a duly appointed representative he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person.

D.Consumer debt claims.

(1) Collection agencies may take assignments of claims in their own names as real parties in interest for the purpose of billing and collection and bringing suit in their own names; provided that no suit authorized by this section may be instituted on behalf of a collection agency in any court unless the collection agency appears by a licensed attorney-at-law; and further provided that the collection agency must plead specific facts in its initial pleading demonstrating that it is the real party in interest.

(2) In any consumer debt claim in which the party seeking relief alleges entitlement to enforce the debt but is not the original creditor, the party must file an affidavit establishing the chain of title or assignment of the debt from the original creditor to and including the party seeking relief. The affidavit must be based on personal knowledge, setting forth those facts as would be admissible in evidence, showing affirmatively that the affiant is competent to testify to the matters stated in the affidavit. An affidavit based on a review of the business records of the party or any other person or entity in the chain of title must establish from personal knowledge compliance with the requirements of Rule 11-803(6)(a)-(c) NMRA, or demonstrate reliance on an attached 18 certification complying with Rule 11-902(11) or (12) NMRA. The business records must 19 be attached to the affidavit or certification.

N.M. R. Civ. P. Magist. Ct. 2-401

As Amended by Supreme Court Order No. 20-8300-005, effective for all cases filed on or after 12/31/2020.

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 D of this rule was added 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, 2-702, 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.

Subparagraph (D)(2)'s affidavit requirements derive from Rule 1-056(E) NMRA. A proper affidavit can support the introduction of business records. See Nader v. Blair, 549 F.3d 953, 963 (4th Cir. 2008) (stating that "employees who are familiar with the record- keeping practices of a business are qualified to speak from personal knowledge that particular documents are admissible business records, and affidavits sworn by such employees constitute appropriate summary judgment evidence."). In like manner, an affidavit from the "custodian or another qualified witness" or "a certification that complies with Rule 11-902(11) or (12) NMRA" that demonstrates compliance with Rule 11-803(6) NMRA suffice, if the business records accompany the affidavit or certification.

The business records exception allows the records themselves to be admissible, but not simply statements about the purported contents of the records. See Bank of New York v. Romero, 2014-NMSC-007, ¶ 33, 320 P.3d 1 (holding that, based on the plain language of Rule 11-803(F) NMRA (2007) (now Rule 11-803(6) NMRA), "it is clear that the business records exception requires some form of document that satisfies the rule's foundational elements to be offered and admitted into evidence and that testimony alone does not qualify under this exception to the hearsay rule and concluding that testimony regarding the contents of business records, unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay") (quoting State v. Cofer, 2011-NMCA-085, ¶ 17, 150 N.M. 483, 261 P.3d 1115) (internal quotation marks omitted).

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

For standing of personal representative to sue, see Section 45-3-703 NMSA 1978. For powers of guardian of minor, see Section 45-5-209 NMSA 1978. For powers of guardian of incapacitated person, see Section 45-5-312 NMSA 1978. For power of conservator in administration to sue, see Section 45-5-424 NMSA 1978. For power of corporation to sue, see Section 53-11-4 NMSA 1978. Am. Jur. 2d, A.L.R. and C.J.S. references. - 59 Am. Jur. 2d Parties §§ 34 to 40, 241, 245 to 251. Compensation for services rendered to infant in the litigation, right of next friend to, 9 A.L.R. 1537. Shares of corporate stock as within statute enabling assignee to maintain action in his own name, 23 A.L.R. 1322. Mortgagee or other lienholder as entitled to maintain action against third person for damage to property, 37 A.L.R. 1120. Waste, who may maintain action to recover multiple damages against tenant committing, 45 A.L.R. 774. Sealed instrument, right of third person to maintain action at law, 47 A.L.R. 5, 170 A.L.R. 1299. Local improvements, power of municipality to transfer or assign its right to enforce assessment or lien for, 55 A.L.R. 667. Refusal to deal with corporation as giving stockholder right of action, 59 A.L.R. 1099. Fire or marine policy taken out by bailee, warehouseman or carrier, right of owner to sue, 61 A.L.R. 720. Subscription to stock in corporation to be formed, who may enforce, 61 A.L.R. 1504. Charitable trust, right of trustees to maintain suit to administer or enforce, 62 A.L.R. 881, 124 A.L.R. 1237. Duty of one learning of action instituted in his name without authority, 63 A.L.R. 1068. Bondholder's right to maintain action against trustee for money received by trustee to discharge bond or coupon, 64 A.L.R. 1186. Rendition of judgment against one not a formal party, who has assumed the defense, 65 A.L.R. 1134. Amendment of verdict as to parties, reassembling jury after discharge, for purpose of, 66 A.L.R. 549. Corporate name, right of bondholders to maintain action to prevent use by another corporation, 66 A.L.R. 948, 115 A.L.R. 1241, 72 A.L.R.3d 8. Promoters, right of corporation to sue on contract made before its organization, 66 A.L.R. 1425. Care to be exercised or precautions to be taken for protection of third persons, availability in action by third person for damages against public contractor, of provisions in contract as to, 69 A.L.R. 522. Delay or mistake, right of undisclosed principal to recover against telegraph company because of, 72 A.L.R. 1198. Right of person furnishing material or labor to maintain action on contractor's bond to owner or public body, or on owner's bond to mortgagee, 77 A.L.R. 21, 118 A.L.R. 57. Right of one brought into action as a party by original defendant upon ground that he is or may be liable to latter in respect to matter in suit, to raise or contest issues with plaintiff, 78 A.L.R. 327. Partner, party plaintiff in action against, for profits earned subsequently to death or dissolution, 80 A.L.R. 12, 55 A.L.R.2d 1391. Right of third person to enforce contract between others for his benefit, 81 A.L.R. 1271, 148 A.L.R. 359. Inducing breach of contract, who may maintain action for, 84 A.L.R. 43, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078. Tax wrongfully exacted on shares of its stock, corporation paying as proper party to maintain action for its recovery, 84 A.L.R. 107. Indemnity or liability insurer, parties plaintiff in action against, by injured person, under statutory or policy provisions, 85 A.L.R. 20, 106 A.L.R. 516. Declaratory judgment, who may petition for, 87 A.L.R. 1205. Bonds of municipality, taxpayer's right of action for sale at less than par, in violation of statute, 91 A.L.R. 7, 162 A.L.R. 396. Reciprocal insurance association, proper party plaintiff in actions by, or on behalf of, 94 A.L.R. 836, 141 A.L.R. 765, 145 A.L.R. 1121. Collective labor agreement, right of individual employee to sue for breach, 95 A.L.R. 10. Escrow, proper party defendant in action for refusal of depository to deliver instrument or property placed in, notwithstanding performance of conditions of delivery, 95 A.L.R. 293. Proper party plaintiff to action against tort-feasor for damages to insured property where insurer is entitled to subrogation to extent of loss paid by it, 96 A.L.R. 864, 157 A.L.R. 1242. Registration lists, who may bring action to purge, 96 A.L.R. 1035. Bank in charge of liquidating officer who refuses or fails to enforce liability of persons to bank, right of creditors to maintain action for that purpose, and conditions of such right, 97 A.L.R. 169, 116 A.L.R. 783. Water user as necessary or proper party to litigation involving right of ditch or canal company or irrigation of drainage district from which he takes water, 100 A.L.R. 561. Ward's right, after majority to maintain action on contracts entered into by guardian on ward's behalf, 102 A.L.R. 269. Insurance, right of third person to sue upon promise made by beneficiary to insured, to pay proceeds to third person, 102 A.L.R. 594. Removal of disability, statute providing that an insane person, minor or other person under disability may bring suit within specified time after removal of disability as affecting right to bring action before disability removed, 109 A.L.R. 954. Rescission of deed or land contract for grantee's breach of agreement to support grantor, right of heirs of grantor to maintain suit for, 112 A.L.R. 670. Heir or next of kin, standing to attack gift or conveyance made by ancestor in his lifetime, as affected by will by which he is disinherited in whole or part, 112 A.L.R. 1405. Bucketshops or bucket-shop transactions, violation of statute relating to, as ground of action by customer or patron, 113 A.L.R. 853. Title, joinder of claims to separate parcels in suit to quiet title, or to remove cloud on, or to determine adverse claims of land, 118 A.L.R. 1400. Holders of mortgage or other lien upon an undivided interest in real property as a necessary or proper party to a suit for partition, 126 A.L.R. 414. Unauthorized prosecution of suit in name of another as ground of action in tort, 146 A.L.R. 1125. Vendee under executory contract, right of, to bring action against third person for damage to land, 151 A.L.R. 938. Decedent's estate, right of creditors to maintain action in interest of, 158 A.L.R. 729. Massachusetts or business trust, 159 A.L.R. 209. Timber contract, necessary and proper parties in action growing out of delay in performance of, 164 A.L.R. 423. Mortgage lienholder as proper or necessary party to suit in respect of contract for sale of mortgaged property, 164 A.L.R. 1044. Insurance, who may enforce policy containing facility of payment clause, 166 A.L.R. 10. Defendant's right to bring in third person asserted to be solely liable to the plaintiff, 168 A.L.R. 600. Contract for joint, mutual or reciprocal wills, parties to action to enforce, 169 A.L.R. 9 Dissolved corporation as indispensable party to stockholder's derivative action, 172 A.L.R. 691. Restrictions on right of action by individual holder of series of corporate bonds or other obligations, validity, construction and application of, 174 A.L.R. 435. Overcharges, representation of several claimants in action against carrier of public utility to recover, 1 A.L.R.2d 160. Dismissal of action for failure or refusal of plaintiff to obey court order, 4 A.L.R.2d 348, 56 A.L.R.3d 1109, 27 A.L.R.4th 61, 32 A.L.R.4th 212, 3 A.L.R.5th 237. Who may complain of underassessment or nonassessment of property for taxation, 5 A.L.R.2d 576, 9 A.L.R.4th 428. Limitation of actions, change in party after statute has run, 8 A.L.R.2d 6. Trust beneficiaries as necessary parties to action relating to trust or its property, 9 A.L.R.2d 10. Right of third person not named in bond or other contract, conditioned for support of, or services to, another, to recover thereon, 11 A.L.R.2d 1010. Right and capacity of taxpayer to a tax sale by municipal corporation or other taxing unit of its property, 17 A.L.R.2d 475. Liability of parent or person in loco parentis for personal tort against minor child, 19 A.L.R.2d 423, 41 A.L.R.3d 904, 6 A.L.R.4th 1066. Validity and enforceability of contract in consideration of naming child, 21 A.L.R.2d 1061. Right of owner's employee injured by subcontractor, to recovery against general contract or for breach of contract between the latter and the owner requiring contractor and subcontractors to carry insurance, 22 A.L.R.2d 647. Necessary parties defendant to action to set aside conveyance in fraud of creditors, 24 A.L.R.2d 395. Joint liability for slander, 26 A.L.R.2d 1031. Liability for procuring breach of contract, 26 A.L.R.2d 1227, 96 A.L.R.3d 1294, 44 A.L.R.4th 1078. Necessary parties defendant to suit to prevent or remove obstruction or interference with easement of way, 28 A.L.R.2d 409. Re-employment of discharged servicemen, 29 A.L.R.2d 1279, 9 A.L.R. Fed. 225, 83 A.L.R. Fed. 908. Guaranty, who may enforce, 41 A.L.R.2d 1213. Conflict of laws as to proper party plaintiff in contract action, 62 A.L.R.2d 486. Continuance, amendment of pleadings with respect to parties or their capacity as ground for, 67 A.L.R.2d 477. Capacity of one who is mentally incompetent but not so adjudicated to sue in his own name, 71 A.L.R.2d 1247. Guardian's capacity to sue or be sued outside state where appointed, 94 A.L.R.2d 162. Insurance, proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where insured has paid part of loss, 13 A.L.R.3d 140. Insurance, proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance, 13 A.L.R.3d 229. Dismissal of state court action for failure or refusal of plaintiff to answer written interrogatories, 56 A.L.R.3d 1109. State Consumer Protection Act, right to private action under, 62 A.L.R.3d 169. Who is minor's next of kin for guardianship purposes, 63 A.L.R.3d 813. Bailor's right of direct action against bailee's theft insurer for loss of bailed property, 64 A.L.R.3d 1207. Proper party plaintiff in action for injury to common areas of condominium development, 69 A.L.R.3d 1148. Necessary or proper parties to suit or proceeding to establish private boundary line, 73 A.L.R.3d 948. Modern status of the Massachusetts or business trust, 88 A.L.R.3d 704. Liability for interference with invalid or unenforceable contract, 96 A.L.R.3d 1294. Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618. Condominium, standing to bring action relating to title in real property of, 74 A.L.R.4th 165. Criminal law: propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 A.L.R.5th 89. What is "cause" justifying discharge from employment of veteran reemployed under § 9 of the Military Selective Service Act of 1967, 9 A.L.R. Fed. 225. 67A C.J.S. Parties §§ 5, 10, 112 to 120.