Answering a New Mexico Debt Collection Complaint: Answers to Frequently Asked Questions

What is the Statute of Limitations within Which a Credit Card Company or Other Creditor Must Bring a Court Action to Collect a Debt?

Under New Mexico law, the statute of limitations (i.e., the time period beyond which no claim can be brought in court) for open accounts (including revolving credit card accounts) is four years, while the statute of limitations for written contracts is six years. If the creditor can provide a signed credit card agreement, a court may find that the six-year statute of limitations is applicable. In either instance, the cause of action accrues "on the last item therein", which generally means the last payment made on the account or the last statement sent to the debtor. After the passage of the statute of limitations, the debt is known as a "time-barred debt".

Can a Credit Card Company Sue Me for a Time Barred Debt?

If a debt collector sues you to collect a time-barred debt, you may have the suit dismissed by raising, as one of your affirmative defenses, that the statute of limitations has passed. Our New Mexico Debt Collection Answer Form included the statute of limitations defense as one of twelve affirmative defenses contained in the form. If you do not answer the creditor's complaint, you waive your right to raise the statute of limitations as a defense. Because many people fail to answer a summons and complaint (in other words, they default), many debt collectors are able to obtain money judgments for debts that could have been avoided if the debtors had simply filed answers with the court. Thus, it is extremely important for you to file a civil answer form with the court, and that your answer form specifically states that the debt is time-barred.

What is the Time Limit for Answering a Civil Summons and Complaint?

You must file your answer to the complaint within 20 days from the date that you were served.

What Happens if I do not File a Written Answer to a Civil Complaint?

If you do not file your answer form within 20 days, the plaintiff can request that the court enter a default judgment against you. This means that the Plaintiff automatically wins, and you waive any affirmative defenses (such as statute of limitations) that you may have otherwise asserted to defeat the lawsuit.

What Happens After I Answer the Complaint?

For debts less than $25,000, New Mexico courts generally require that the parties engage in non-binding arbitration before an attorney appointed by the Court.

Can I Include A Counterclaim Against the Debt Collector For Deceptive Collections Practices?

Yes. If you believe that the debt collector has engaged in deceptive conduct, you may file a counterclaim under the New Mexico Unfair Practices Act. In general, the Unfair Practices Act prohibits "[u]nfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce". (N. M. S. A. 1978, § 57-12-3). Our New Mexico Debt Collection Answer Form includes a counterclaim. You can alter the particular language and allegations in the counterclaim to fit your particular circumstances. If you do not want to assert a counterclaim, you can easily delete that part of the form.

The particular types of conduct that are prohibited by the Unfair Practices Act are defined in the statute as follows: (N. M. S. A. 1978, § 57-12-2)

"unfair or deceptive trade practice" means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person's trade or commerce, that may, tends to or does deceive or mislead any person and includes:
(1) representing goods or services as those of another when the goods or services are not the goods or services of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have;
(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another;
(8) disparaging the goods, services or business of another by false or misleading representations;
(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;
(10) offering goods or services with intent not to supply reasonable expectable public demand;
(11) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one's own price at a past or future time or the reasons for, existence of or amounts of price reduction;
(12) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;
(13) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;
(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;
(15) stating that a transaction involves rights, remedies or obligations that it does not involve;
(16) stating that services, replacements or repairs are needed if they are not needed;
(17) failing to deliver the quality or quantity of goods or services contracted for; or
(18) violating the Tobacco Escrow Fund Act; and
E. "unconscionable trade practice" means an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts that to a person's detriment:
(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or
(2) results in a gross disparity between the value received by a person and the price paid.