Answer to Petition for Restitution (Tenant Answer) — New Mexico

ANSWER TO PETITION BY OWNER FOR RESTITUTION — NEW MEXICO

TABLE OF CONTENTS

1. Caption
2. General Denial and Specific Admissions/Denials
3. Affirmative Defenses
4. Counterclaims
5. Demand for Jury Trial
6. Servicemembers Civil Relief Act Notice
7. Prayer for Relief
8. Verification
9. Defendant / Counsel Signature Block
10. Certificate of Service
11. Attachments / Exhibits Index
12. New Mexico Practice Notes — Tenant Defenses
13. Sources and References

1. CAPTION

STATE OF NEW MEXICO

COUNTY OF [______________]

☐ MAGISTRATE COURT, [_____] DIVISION
☐ BERNALILLO COUNTY METROPOLITAN COURT
☐ [_____] JUDICIAL DISTRICT COURT

No. [____________________]

ANSWER TO PETITION BY OWNER FOR RESTITUTION, AFFIRMATIVE DEFENSES, COUNTERCLAIMS, AND DEMAND FOR JURY TRIAL

(Form 4-906 NMRA — Uniform Owner-Resident Relations Act)

2. GENERAL DENIAL AND SPECIFIC ADMISSIONS/DENIALS

Defendant [RESIDENT FULL LEGAL NAME], by and through [counsel / pro se], answers Plaintiff's Petition as follows:

2.1 General Denial. Defendant denies each and every allegation of the Petition not specifically admitted below.

2.2 Paragraph-by-Paragraph Response.

3. AFFIRMATIVE DEFENSES

Defendant asserts the following affirmative defenses, any one of which is sufficient to defeat the Petition. Defendant reserves the right to amend or supplement these defenses based on discovery and trial evidence.

3.1 First Defense — Defective Statutory Notice

The Notice attached to the Petition is statutorily defective in one or more of the following respects:

☐ Wrong notice tier (e.g., 3-day pay-or-quit served for non-rent breach; 3-day substantial-violation notice served for conduct that does not meet § 47-8-33(I)).

☐ Lacks particularity required by NMSA § 47-8-33 — fails to specify the acts and omissions, dates, and specific facts of the alleged breach. Conclusory allegations are insufficient.

☐ Insufficient cure period given. Required cure period: [____ days]; Notice gave: [____ days].

☐ Cure deadline miscalculated; statutory weekend/holiday extension under § 47-8-33(H) was not applied.

☐ Notice was not served in a manner authorized by statute or rental agreement; Defendant did not receive Notice on the date alleged.

☐ Other defect: [____________________________________________]

3.2 Second Defense — Tender / Cure

Defendant tendered the full amount of rent due (or otherwise cured the alleged breach) in the manner stated in the Notice and within the cure period. Tender bars action for nonpayment under NMSA § 47-8-33(D). Specifically:

• Date of tender/cure: [__/__/____]
• Amount tendered: $[________]
• Method of tender: [____________________]
• Owner's response: ☐ Accepted ☐ Refused ☐ Returned ☐ Deemed insufficient

3.3 Third Defense — Breach of Implied Warranty of Habitability

Plaintiff has materially breached the obligations of an owner under NMSA § 47-8-20, including failure to:

☐ Comply with applicable building and housing codes materially affecting health and safety
☐ Maintain electrical, plumbing, sanitary, heating, ventilating, and air-conditioning facilities in good and safe working order
☐ Supply running water and reasonable amounts of hot water and reasonable heat at all times
☐ Maintain common areas in a safe condition
☐ Provide receptacles for garbage/waste removal
☐ Other: [____________________]

Specific habitability defects, with dates:

Defendant invoked statutory remedies under §§ 47-8-27.1 and 47-8-27.2, including [☐ rent abatement ☐ written notice and seven-day cure to Owner ☐ termination ☐ damages or injunctive relief for material noncompliance ].

3.4 Fourth Defense — Retaliation (NMSA § 47-8-39)

Plaintiff's action is retaliatory and therefore barred. Within the SIX (6) MONTHS preceding service of the termination notice, Defendant engaged in one or more protected activities:

☐ Complained to a government agency about a code violation
☐ Joined or organized a residents' union, association, or similar group
☐ Made a written request or complaint to Owner to perform repairs or otherwise comply with § 47-8-20
☐ Filed a fair-housing complaint with HUD, the New Mexico Human Rights Bureau, or the City of Albuquerque Office of Civil Rights
☐ Prevailed in a lawsuit as plaintiff or defendant, or has a lawsuit pending against Owner relating to this residency
☐ Testified in support of another resident
☐ Lawfully abated rent under § 47-8-27.2
☐ Other: [____________________]

Date(s) and details: [____________________________________________]

The protected conduct occurred within the six-month period in § 47-8-39(A). If the owner's possession action was brought because of that conduct and the resident meets the section's conditions, retaliation is a defense under § 47-8-39(B). State facts showing the connection: [FACTS].

3.5 Fifth Defense — Discrimination

Plaintiff's action is motivated, in whole or in part, by Defendant's membership in one or more classes protected under:

☐ NMSA § 28-1-7 (NM Human Rights Act) — race, religion, color, national origin, ancestry, sex, sexual orientation, gender identity, pregnancy/childbirth, spousal affiliation, physical or mental disability
☐ 42 U.S.C. § 3604 (federal Fair Housing Act) — race, color, religion, national origin, sex, familial status, disability
☐ Albuquerque Human Rights Ordinance, City Code § 11-3-2 et seq. — adds source of income (including Section 8 / HCV vouchers), citizenship status, and additional categories
☐ Other state/local protection: [____________________]

Specific factual basis: [____________________________________________]

3.6 Sixth Defense — Owner Self-Help Eviction (NMSA § 47-8-36)

Plaintiff has engaged in prohibited self-help eviction, including:

☐ Changing or removing locks
☐ Shutting off utilities (electricity, gas, water, heat, plumbing, telephone)
☐ Removing Defendant's personal property from the Premises
☐ Removing or incapacitating appliances or fixtures (other than for legitimate repair)
☐ Other willful act rendering the Premises inaccessible or uninhabitable

Defendant counterclaims for daily rent abatement and damages under § 47-8-36(C), two times monthly rent under § 47-8-48(C), and attorney fees and costs under § 47-8-48(A) (see Section 4 below).

3.7 Seventh Defense — Security Deposit Setoff (NMSA § 47-8-18)

Plaintiff has wrongfully retained Defendant's security deposit (or applied it improperly), and Defendant is entitled to setoff against any amount alleged owed.

3.8 Eighth Defense — Waiver / Estoppel / Course of Dealing

Plaintiff waived strict performance of [the rent due date / lease provision] by [accepting late rent without penalty / accepting partial payment / other course of dealing] over a period of [____ months/years].

3.9 Ninth Defense — Acceptance of Rent After Notice

Plaintiff accepted rent for the period [__/__/____] to [__/__/____] AFTER service of the Notice, thereby waiving the Notice and reinstating the tenancy.

3.10 Tenth Defense — Federal Good-Cause / Subsidized Housing

The Premises are subsidized under [☐ Section 8 Housing Choice Voucher ☐ project-based Section 8 ☐ public housing ☐ LIHTC ☐ HOME ☐ RAD ☐ USDA RD ☐ other ____], and Plaintiff has not complied with applicable federal "good cause" termination requirements, VAWA protections, or program-specific notice and grievance procedures.

3.11 Eleventh Defense — Servicemembers Civil Relief Act

☐ Defendant is a servicemember / ☐ Defendant is a dependent of [SERVICEMEMBER NAME], who is in military service. The Premises are primarily a residence, monthly rent is $[________] within the annual adjusted ceiling under 50 U.S.C. § 3951(a), and military service materially affects the servicemember's ability to pay. Defendant requests relief under § 3951(b): a stay of proceedings for ninety (90) days, or another period required by justice and equity, or an adjustment of the lease obligation that preserves the parties' interests.

3.12 Twelfth Defense — Failure to State a Claim

The Petition fails to state a claim upon which relief can be granted under the Uniform Owner-Resident Relations Act.

3.13 Reservation of Additional Defenses

Defendant reserves the right to assert additional defenses as discovered, including statute of limitations, lack of standing (Plaintiff is not the lawful owner), unclean hands, illegality, fraud, mistake, ratification, accord and satisfaction, and waiver. Per NMSA § 47-8-45, all defenses may be raised at trial.

4. COUNTERCLAIMS

4.1 Defendant incorporates paragraphs 2.1 through 3.13 above.

Counterclaim One — Habitability Damages (NMSA §§ 47-8-20, 47-8-27.1, 47-8-48)

4.2 Plaintiff failed to maintain the Premises as required by NMSA § 47-8-20, causing Defendant to suffer damages including:

• Diminution of rental value: $[________]
• Out-of-pocket repair costs: $[________]
• Replacement of damaged personal property (e.g., from leaks, mold): $[________]
• Medical/relocation costs: $[________]

4.3 Defendant seeks rent abatement and actual damages where authorized, plus attorney fees and costs if prevailing under NMSA § 47-8-48(A).

Counterclaim Two — Self-Help Eviction (NMSA § 47-8-36)

4.4 Plaintiff engaged in prohibited self-help eviction (see Section 3.6 above).

4.5 Defendant seeks one hundred percent rent abatement for each affected day under NMSA § 47-8-36(C)(1), damages under § 47-8-36(C)(4), liability equal to TWO TIMES the monthly rent under § 47-8-48(C), and reasonable attorney fees and costs under § 47-8-48(A).

Counterclaim Three — Security Deposit (NMSA § 47-8-18)

4.6 Plaintiff retained Defendant's security deposit of $[________] beyond the 30-day statutory period without providing an itemized written statement, OR retained a portion in bad faith.

4.7 Defendant seeks relief supported by § 47-8-18(D), including any deposit forfeiture, court costs, and reasonable attorney fees whose conditions are proven, plus the $250 penalty under § 47-8-18(E) only if bad-faith retention is proven.

Counterclaim Four — Retaliation (NMSA § 47-8-39)

4.8 Plaintiff retaliated against Defendant for protected activities (see Section 3.4 above).

4.9 Defendant seeks remedies under § 47-8-48, including damages and attorney fees.

Counterclaim Five — Discrimination

4.10 Plaintiff discriminated against Defendant in violation of NMSA § 28-1-7, the federal Fair Housing Act, and (where applicable) the Albuquerque Human Rights Ordinance.

4.11 Defendant seeks compensatory damages, civil penalties as authorized, injunctive relief, and attorney fees.

5. DEMAND FOR JURY TRIAL

Defendant demands a trial by jury of all issues so triable under NMRA 2-602 (Magistrate) or 3-602 (Metropolitan), as applicable. Defendant tenders the required jury fee with this Answer.

6. SERVICEMEMBERS CIVIL RELIEF ACT NOTICE

☐ Defendant is NOT an active-duty servicemember.
☐ Defendant IS a servicemember in military service / ☐ Defendant is a dependent of one, and requests relief under 50 U.S.C. § 3951(b), subject to the residential-use, adjusted-rent-ceiling, and material-effect conditions stated in Section 3.11.

7. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests:

A. That the Petition be DISMISSED WITH PREJUDICE;

B. That possession of the Premises be quieted in Defendant or, alternatively, that Defendant be granted a reasonable time to vacate without entry of a possessory judgment;

C. That judgment be entered against Plaintiff on each Counterclaim asserted above, including:

1. Habitability and rent-abatement damages of $[________];
2. Self-help remedies — two times monthly rent ($[________]), per-day rent abatement, damages, attorney fees, and costs as authorized by §§ 47-8-36(C) and 47-8-48(A), (C);
3. Security-deposit return and statutory penalty ($[________] + $250);
4. Retaliation damages of $[________];
5. Discrimination damages of $[________];

D. Attorney fees and costs under NMSA § 47-8-48, § 47-8-18, § 47-8-36, and applicable civil rights statutes;

E. Pre- and post-judgment interest at the statutory rate;

F. Such other and further relief as the Court deems just and proper.

8. VERIFICATION

STATE OF NEW MEXICO
COUNTY OF [______________]

I, [DEFENDANT NAME], being first duly sworn, depose and state:

1. I am the Defendant in this action.

2. I have read the foregoing Answer, Affirmative Defenses, and Counterclaims and know the contents thereof.

3. The facts stated therein are true to the best of my knowledge, except for those stated upon information and belief, and as to those I believe them to be true.

___________________________________
[DEFENDANT SIGNATURE]
[DEFENDANT PRINTED NAME]

Subscribed and sworn to before me on [__/__/____].

___________________________________
Notary Public — State of New Mexico
My commission expires: [__/__/____]

9. DEFENDANT / COUNSEL SIGNATURE BLOCK

Respectfully submitted,

___________________________________
[ATTORNEY NAME, NM Bar No. _________] (if represented)
[FIRM NAME / LEGAL AID OFFICE]
[STREET ADDRESS]
[CITY, STATE ZIP]
Telephone: [(___) ___-____]
Email: [_________________________]

OR (if pro se):

___________________________________
[DEFENDANT NAME], Defendant (Pro Se)
[STREET ADDRESS]
[CITY, STATE ZIP]
Telephone: [(___) ___-____]
Email: [_________________________]

Date: [__/__/____]

10. CERTIFICATE OF SERVICE

I certify that on [__/__/____] I caused a true and correct copy of the foregoing Answer, Affirmative Defenses, Counterclaims, and Demand for Jury Trial to be served upon the following by [☐ U.S. Mail ☐ hand delivery ☐ email (if authorized) ☐ Court electronic filing]:

[ATTORNEY FOR PLAINTIFF / PLAINTIFF PRO SE]
[STREET ADDRESS]
[CITY, STATE ZIP]
Email: [_________________________]

___________________________________
[SIGNATURE]
[PRINTED NAME]

11. ATTACHMENTS / EXHIBITS INDEX

• Exhibit 1: Repair requests / habitability complaints to Owner (with dates)
• Exhibit 2: Photographs/video of conditions
• Exhibit 3: Code-enforcement complaints, inspection reports
• Exhibit 4: Receipts for rent payments and tenders
• Exhibit 5: Communications evidencing retaliation or discrimination
• Exhibit 6: Security-deposit receipt and post-move correspondence
• Exhibit 7: Servicemember status verification (DoD/SCRA website printout)
• Exhibit 8: Subsidy/voucher documents (HCV / project-based Section 8)
• Exhibit 9: Other supporting documentation: [_______________]

12. NEW MEXICO PRACTICE NOTES — TENANT DEFENSES

Time Is Critical. Trial is set 7-10 days after service of summons. Do not delay — contact New Mexico Legal Aid (1-833-LGL-HELP) the same day you receive the summons. Defenses are preserved at trial under § 47-8-45 even without a written answer, but written answers protect the record.

Use Form 4-906 If Available. Many NM clerks expect Form 4-906 NMRA (Answer to Petition for Restitution). This template tracks Form 4-906 closely; transcribe to the official form for filing or attach as supplement.

Check the Notice. Compare the Notice attached to the Petition against § 47-8-33 (correct tier, particular facts, dates, weekend/holiday extension). Raise defects that affect a statutory requirement or the grounds on which Plaintiff seeks possession; § 47-8-33(G) limits relief to grounds stated in the written notice.

Habitability Claims Require Documentation. § 47-8-20 establishes the warranty; § 47-8-27.1 prescribes the resident's remedies (notice to owner, 7-day cure period, or other steps); § 47-8-27.2 allows rent abatement under specific procedures. Save: written repair requests, photos with timestamps, code-inspection reports, medical records (if mold/lead/heat-related).

Retaliation — Six-Month Window. Document the protected activity, dates, rent and lease compliance, and facts showing that the owner acted because of the activity. Section 47-8-39 makes qualifying retaliation a defense; the six-month timing alone does not establish it.

Self-Help Remedies. Under § 47-8-36(C), a qualifying lockout or utility shutoff can support full rent abatement for each affected day and damages. Section 47-8-48(C) makes the owner liable for two times monthly rent; § 47-8-48(A) provides prevailing-party fees and costs. Document the dates, duration, and resulting loss.

Security Deposit — Affirmative Setoff. Section 47-8-18(A)(2) caps a deposit at one month’s rent for an agreement shorter than one year; Subsection A(1) instead requires annual passbook-rate interest when an annual agreement uses a deposit greater than one month’s rent. Subsections C-D govern the statement, balance, mailing, and conditional forfeitures. The $250 penalty in Subsection E separately requires bad-faith retention.

Discrimination — Multiple Forums.

• NM Human Rights Bureau (state-level NMSA § 28-1-7 complaints): nmdws.org/HRB
• HUD Fair Housing complaint: hud.gov/fairhousing
• City of Albuquerque Office of Civil Rights (source-of-income, additional protected classes): cabq.gov/officecivilrights or 311

Jury Demand. Rules 2-602 and 3-602 require a defendant's demand in the answer and payment of the jury fee when the demand is made. Rules 2-603 and 3-603 set six-person juries in Magistrate and Metropolitan Courts.

Appeals. A Magistrate Court civil judgment may be appealed to District Court within fifteen days under § 35-13-1 and Rule 2-705. A Metropolitan Court UORRA judgment may be appealed de novo to District Court within fifteen days under § 34-8A-6(C) and Rule 3-706(B). To stay execution of a writ of restitution on the resident's appeal, meet § 47-8-47(A)'s payment conditions: pay the initial amount to the owner or a professional escrow agent within five days after filing the notice of appeal, then continue the required monthly payments. A money-judgment stay has separate conditions under § 47-8-47(B).

Subsidized Housing. If you hold a Section 8 voucher, live in project-based Section 8, public housing, LIHTC, RAD, or USDA RD housing: federal good-cause requirements apply. Termination notices that don't satisfy federal good cause are voidable. VAWA (34 U.S.C. § 12491) provides additional protections for survivors of domestic violence, sexual assault, dating violence, and stalking.

Mobile Home Parks. NMSA § 47-10 applies. Notice and termination procedures differ; "for cause" requirements under § 47-10-5 apply, and the notice period to remove a mobile home is 30 days (60 for multi-section).

Albuquerque Source of Income. If a landlord refused to accept a Housing Choice Voucher, charged voucher tenants higher fees, or refused to complete HCV paperwork, file a parallel complaint with the City of Albuquerque Office of Civil Rights (311).

Free Tenant Resources.

• New Mexico Legal Aid: 1-833-LGL-HELP (1-833-545-4357) | newmexicolegalaid.org
• Law Access New Mexico: 1-800-340-9771
• NM Eviction Prevention & Diversion Program: nmevictionprevention.com
• Senior Citizens' Law Office (Bernalillo, age 60+): (505) 265-2300
• Chainbreaker Collective (Santa Fe): chainbreaker.org

13. SOURCES AND REFERENCES

• NMSA 1978 § 47-8-20 (Owner obligations / habitability) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-20/
• NMSA 1978 § 47-8-18 (Security deposits) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-18/
• NMSA 1978 § 47-8-27.1 (Resident remedies for owner breach) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-27-1/
• NMSA 1978 § 47-8-33 (Breach by resident; particular notices) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-33/
• NMSA 1978 § 47-8-36 (Self-help eviction prohibited) — https://nmonesource.com/nmos/nmsa/en/4408/1/document.do
• NMSA 1978 § 47-8-37 (Termination notice) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-37/
• NMSA 1978 § 47-8-39 (Retaliation; six-month protected-conduct lookback) — https://nmonesource.com/nmos/nmsa/en/4408/1/document.do
• NMSA 1978 § 47-8-43 (Issuance of summons; 7-10 day trial) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-43/
• NMSA 1978 § 47-8-45 (Trial; defenses; counterclaims) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-45/
• NMSA 1978 § 47-8-48 (Damages; attorney fees) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-48/
• NMSA 1978 § 28-1-7 (NM Human Rights Act — housing) — https://law.justia.com/codes/new-mexico/chapter-28/article-1/section-28-1-7/
• NMSA 1978 §§ 47-10-1 to 47-10-23 (Mobile Home Park Act) — https://law.justia.com/codes/new-mexico/chapter-47/article-10/
• NMSA 1978 § 35-13-1 (Appeals to District Court — de novo) — https://law.justia.com/codes/new-mexico/chapter-35/article-13/section-35-13-1/
• NM Courts — Landlord/Tenant Forms (incl. Form 4-906 Answer) — https://nmcourts.gov/forms-files/landlord-tenant/
• NM Law Library — Landlord-Tenant Resource Guide (Oct. 2025) — https://lawlibrary.nmcourts.gov/
• Albuquerque Source-of-Income Amendment — https://www.cabq.gov/office-of-equity-inclusion/about-office-of-equity-inclusion/civilrights/source-of-income-amendment-to-albuquerque-human-rights-ordinance
• New Mexico Legal Aid — https://www.newmexicolegalaid.org/
• 42 U.S.C. §§ 3601-3619 (Federal Fair Housing Act)
• 34 U.S.C. § 12491 (VAWA housing protections)
• 50 U.S.C. § 3951 (SCRA — residential evictions)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. Tenant deadlines in New Mexico eviction cases are extremely short; contact New Mexico Legal Aid (1-833-LGL-HELP) or another New Mexico-licensed attorney IMMEDIATELY upon receiving an eviction summons.