Petition by Owner for Restitution (Eviction Complaint) — New Mexico

PETITION BY OWNER FOR RESTITUTION — NEW MEXICO

TABLE OF CONTENTS

1. Caption
2. Parties
3. Jurisdiction and Venue
4. Background — Tenancy and Premises
5. Notice of Termination — Statutory Basis
6. Cause of Action — Possession (Restitution)
7. Cause of Action — Money Damages (if any)
8. Servicemembers Civil Relief Act Allegation
9. Prayer for Relief
10. Verification
11. Owner / Counsel Signature Block
12. Attachments / Exhibits Index
13. New Mexico Practice Notes
14. Sources and References

1. CAPTION

STATE OF NEW MEXICO

COUNTY OF [______________]

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

No. [____________________]

PETITION BY OWNER FOR RESTITUTION

(Form 4-904 NMRA — Uniform Owner-Resident Relations Act)

2. PARTIES

2.1 Plaintiff/Petitioner. Plaintiff [OWNER FULL LEGAL NAME] is:

☐ An individual residing at [ADDRESS, CITY, STATE, ZIP]
☐ A [STATE]-organized [LLC / corporation / partnership / trust] with its principal place of business at [ADDRESS]
☐ Acting through authorized agent [AGENT NAME], [TITLE], [ADDRESS]

Plaintiff is the lawful owner / lessor of the Premises described in Section 4 below.

2.2 Defendant(s)/Respondent(s). Defendant [RESIDENT FULL LEGAL NAME] is and was at all relevant times a resident of the Premises pursuant to a rental agreement with Plaintiff. Defendant resides at the Premises.

2.3 Other Occupants. "[__]" John/Jane Does are joined as all other occupants in possession of the Premises whose true names are unknown to Plaintiff. Plaintiff will amend to substitute true names upon discovery.

3. JURISDICTION AND VENUE

3.1 Subject-Matter Jurisdiction. This Court has jurisdiction over actions for restitution of premises under the Uniform Owner-Resident Relations Act, NMSA 1978 §§ 47-8-1 to 47-8-52, and specifically § 47-8-42.

☐ Magistrate Court — civil jurisdiction up to $10,000 (NMSA § 35-3-3).
☐ Metropolitan Court — civil jurisdiction up to $10,000 (Bernalillo County only).
☐ District Court — general civil jurisdiction.

3.2 Personal Jurisdiction. This Court has personal jurisdiction over Defendant because Defendant resides at and occupies the Premises located within the territorial jurisdiction of this Court.

3.3 Venue. Venue is proper in [_______] County because the Premises are located in [_______] County, New Mexico (NMSA § 38-3-1; § 47-8-42).

4. BACKGROUND — TENANCY AND PREMISES

4.1 The premises that are the subject of this Petition (the "Premises") are located at:

[STREET ADDRESS]
[UNIT/APT NUMBER, if any]
[CITY], New Mexico [ZIP CODE]
[COUNTY] County

4.2 Plaintiff and Defendant entered into a rental agreement on [__/__/____] (the "Rental Agreement").

☐ Written. A true and correct copy is attached as Exhibit A.
☐ Oral.

4.3 Tenancy type:

☐ Month-to-month, beginning [__/__/____]
☐ Week-to-week, beginning [__/__/____]
☐ Fixed term from [__/__/____] to [__/__/____] (currently in term / expired and holdover)

4.4 The current rent is $[________] per [☐ month ☐ week], due on the [_____] day of each [☐ month ☐ week].

4.5 Defendant took possession of the Premises on or about [__/__/____] and currently occupies the Premises.

5. NOTICE OF TERMINATION — STATUTORY BASIS

5.1 On [__/__/____], Plaintiff caused to be served upon Defendant the written notice attached as Exhibit B (the "Notice"), pursuant to one of the following statutory authorities:

☐ NMSA § 47-8-33(D) — THREE (3) DAY pay-or-quit notice for nonpayment of rent in the amount of $[_______].
☐ NMSA § 47-8-33(A) — SEVEN (7) DAY cure-or-quit notice for material noncompliance.
☐ NMSA § 47-8-33(B) — SEVEN (7) DAY non-curable notice for second material noncompliance within six months (initial notice dated [__/__/____]; initial notice stated the § 47-8-33(C) second-breach warning and was given within 30 days of the initial breach or owner's knowledge: ☐ Confirmed).
☐ NMSA §§ 47-8-3(V), 47-8-33(I) — THREE (3) DAY substantial-violation notice (non-curable).
☐ NMSA § 47-8-37(A) — SEVEN (7) DAY no-cause termination of week-to-week tenancy.
☐ NMSA § 47-8-37(B) — THIRTY (30) DAY no-cause termination of month-to-month tenancy.
☐ NMSA § 47-8-37(C) — Holdover after expiration or termination.
☐ Other: [_______________________________]

5.2 The Notice specified the acts and omissions constituting the breach (where applicable), the date(s) of breach, the specific facts, and that the Rental Agreement would terminate on [__/__/____] if the breach was not remedied (where curable).

5.3 The Notice was served on [__/__/____] by the following method(s):

☐ Hand delivery to Defendant.
☐ Mail to Defendant at the designated place for receipt of communications or, if none, the last known residence.
☐ Exterior-door posting of a nonpayment notice, with the posting date stated and the notice affixed as required by § 47-8-13(D).
☐ Exterior-door posting of another termination notice plus ☐ first-class mail ☐ hand delivery to Defendant.

A true and correct affidavit/certificate of service of the Notice is attached as Exhibit C.

5.4 The cure period (if any) expired on [__/__/____]. Defendant has not cured the breach (if curable) and has not surrendered possession of the Premises.

6. CAUSE OF ACTION — POSSESSION (RESTITUTION)

6.1 Plaintiff incorporates paragraphs 1.1 through 5.4 above as if fully set forth.

6.2 The Rental Agreement is terminated as of [__/__/____].

6.3 Despite the termination of the Rental Agreement and demand for surrender, Defendant remains in possession of the Premises in violation of NMSA § 47-8-40 and the terms of the Rental Agreement.

6.4 Plaintiff is entitled to a judgment for restitution and possession of the Premises and to issuance of a writ of restitution under NMSA § 47-8-46.

7. CAUSE OF ACTION — MONEY DAMAGES (IF ANY)

7.1 Plaintiff incorporates paragraphs 1.1 through 6.4 above.

7.2 Unpaid rent. Defendant owes unpaid rent in the amount of $[________], itemized as follows:

7.3 Rent accruing through judgment. Plaintiff seeks rent accruing through the date of judgment at the rate of $[___] per [day/month].

7.4 Property damage (if pleaded) — itemized at Exhibit D: $[________]

7.5 Late fees authorized by the Rental Agreement and assessed with notice under NMSA § 47-8-15(D), capped at five percent of rent for each rental period of default and calculated without deposits, other fees, or utilities: $[________]

7.6 Holdover damages — If Defendant remained in possession without consent after expiration or termination and the holdover was willful and not in good faith, Plaintiff requests proven damages sustained and reasonable attorney fees under NMSA § 47-8-37(C).

7.7 Court costs and attorney fees as available under NMSA § 47-8-48 and the Rental Agreement.

TOTAL MONEY DAMAGES SOUGHT: $[________] (within court's jurisdictional limit).

8. SERVICEMEMBERS CIVIL RELIEF ACT ALLEGATION

Plaintiff certifies, upon information and belief, that:

☐ Defendant is NOT an active-duty member of the United States Armed Forces or otherwise entitled to protections under the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq., specifically § 3951 covering residential eviction protections); OR

☐ Defendant IS an active-duty servicemember; Plaintiff has complied with applicable SCRA notice and stay procedures, including obtaining any required court order under 50 U.S.C. § 3951.

9. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment as follows:

A. For restitution of the Premises and a writ of restitution under NMSA § 47-8-46;

B. For unpaid rent in the amount of $[________], plus rent accruing through the date of judgment;

C. For property damage in the amount of $[________] (if pleaded);

D. For late fees in the amount of $[________];

E. For holdover damages under NMSA § 47-8-37(C), where holdover was willful and not in good faith;

F. For court costs, including filing fees, service-of-process fees, and statutory costs;

G. For reasonable attorney fees as available under NMSA § 47-8-48 and the Rental Agreement;

H. For pre- and post-judgment interest at the statutory rate;

I. For such other and further relief as the Court deems just and proper.

10. VERIFICATION

STATE OF NEW MEXICO
COUNTY OF [______________]

I, [OWNER / AGENT NAME], being first duly sworn, depose and state:

1. I am the [Plaintiff / authorized agent of Plaintiff] in the foregoing action.

2. I have read the Petition and know the contents thereof.

3. The matters 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.

___________________________________
[VERIFIER SIGNATURE]
[VERIFIER PRINTED NAME]
[TITLE]

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

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

11. OWNER / COUNSEL SIGNATURE BLOCK

Respectfully submitted,

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

OR (if pro se Plaintiff):

___________________________________
[OWNER / AGENT NAME], Plaintiff (Pro Se)
[STREET ADDRESS]
[CITY, STATE ZIP]
Telephone: [(___) ___-____]
Email: [_________________________]

Date: [__/__/____]

12. ATTACHMENTS / EXHIBITS INDEX

• Exhibit A: Rental Agreement (if written)
• Exhibit B: Notice (3-day pay/quit, 7-day cure or repeat-breach termination, 3-day substantial violation, 30-day no-cause, etc.)
• Exhibit C: Affidavit/Certificate of Service of the Notice
• Exhibit D: Itemized property-damage list (if pleaded)
• Exhibit E: Rent ledger / payment history
• Exhibit F: Photographs and supporting documentation (if any)
• Exhibit G: Prior 7-day notice (for second-violation under § 47-8-33(B))

13. NEW MEXICO PRACTICE NOTES

Use Official Forms. Magistrate, Metropolitan, and District Court clerks expect the official Form 4-904 NMRA. Substitute pleadings risk rejection. This template is for drafting and analysis only — fill in the official form for filing.

Trial Timing. For an owner's possession action, § 47-8-43(A)(1) sets trial no earlier than seven and no later than ten days after service of the summons. Under § 47-8-43(B), the court may continue the initial hearing for up to seven additional days on a finding of good cause. Section 47-8-44 addresses the defendant's absence from court.

Service of Summons. Forms 4-905A/B; service by sheriff, private process server, or disinterested adult 18+. If service is made by posting the summons, complaint, and answer form at the defendant's usual home because no person is found there, NMRA Civil Form 4-204 also requires mailing those documents by first-class mail, postage prepaid. The person posting and the person mailing each sign a return of service.

Defenses Preserved at Trial. § 47-8-45 — Defendant may raise defenses, including breach of warranty of habitability (§ 47-8-20), retaliation (§ 47-8-39, which looks back six months for listed protected conduct), discrimination (§ 28-1-7; FHA), and defective notice, where supported by the facts and law. Defendant may also assert counterclaims for damages.

Jury Demand. Magistrate Court Rule 2-602 and Metropolitan Court Rule 3-602 govern jury demands: the plaintiff must demand a jury in the complaint, and the defendant in the answer, with the required fee. Magistrate and Metropolitan Court juries consist of six jurors under Rules 2-603 and 3-603.

Writ of Restitution. § 47-8-46 — issues 3 to 7 days after judgment; court may delay up to 7 days for good cause. Sheriff executes the writ; resident's belongings disposed of per § 47-8-34.1 (storage and 30-day notice procedures).

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 judgment in an action under the Uniform Owner-Resident Relations Act may be appealed de novo to District Court within fifteen days under § 34-8A-6(C) and Rule 3-706(B). A resident's appeal stays execution of the writ only if the resident meets § 47-8-47(A)'s rent-payment conditions, including the initial payment to the owner or a professional escrow agent within five days after filing the notice of appeal and continuing monthly payments. Section 47-8-47(B) separately addresses a bond or deposit to stay a money judgment.

Amount in Controversy. Magistrate Court and Metropolitan Court are capped at $10,000 (NMSA § 35-3-3; § 34-8A-3). If the unpaid-rent claim exceeds the cap, file in District Court or sever the money claim.

Rent and Eviction Concurrent Claims. Some judges permit money judgment along with restitution; others bifurcate. Confirm local practice with the clerk.

Federal Good-Cause Overlay. For Section 8 project-based, public housing, LIHTC, RAD, USDA RD, or other federally subsidized housing, federal "good cause" requirements supersede no-cause termination under § 47-8-37. File only after compliance with HUD/USDA notice rules.

Albuquerque-Specific. File in Bernalillo County Metropolitan Court for properties within Albuquerque. Verify compliance with the Albuquerque Human Rights Ordinance (source-of-income protection) for voucher-holding tenants.

Mobile Home Parks. Use NMSA § 47-10 procedures and Form 4-926 (Mobile Home Park notice form), not § 47-8 forms.

Servicemembers Civil Relief Act. For premises occupied or intended primarily as a residence with rent within the annually adjusted cap, 50 U.S.C. § 3951 requires a court order to evict a servicemember or covered dependent during the servicemember's military service. On the qualifying servicemember request and material effect on ability to pay agreed rent, the court must grant a 90-day stay unless justice and equity require a longer or shorter period, or adjust the lease obligation. Confirm coverage and the required facts; the section does not create an automatic stay for every military household.

14. SOURCES AND REFERENCES

• Official New Mexico Statutes, Chapter 47 — Property Law (§§ 47-8-3, 47-8-13, 47-8-33, and 47-8-37 through 47-8-48).
• NMSA 1978 § 47-8-43 (Issuance of summons; trial 7-10 days) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-43/
• NMSA 1978 § 47-8-44 (Absence of defendant from court) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-44/
• 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 § 47-8-46 (Writ of restitution) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-46/
• NMSA 1978 § 47-8-48 (Damages; attorney fees) — https://law.justia.com/codes/new-mexico/chapter-47/article-8/section-47-8-48/
• Form 4-904 NMRA (Petition by Owner for Restitution) — https://nmcourts.gov/formsfiles/4-904-petition-by-owner-for-restitution/
• Form 4-905A NMRA (Summons; Notice of Hearing) — https://nmcourts.gov/wp-content/uploads/sites/62/2023/12/Form-4-905A-NMRA.pdf
• Form 4-905B NMRA (Post-judgment Writ of Restitution Summons) — https://supremecourt.nmcourts.gov/wp-content/uploads/sites/2/2024/02/Form-4-905B-NMRA.pdf
• NM Courts — Landlord/Tenant Forms — https://nmcourts.gov/forms-files/landlord-tenant/
• NMSA 1978 § 35-3-3 (Magistrate Court jurisdictional limit) — https://law.justia.com/codes/new-mexico/chapter-35/
• 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 Law Library — Landlord-Tenant Resource Guide (Oct. 2025) — https://lawlibrary.nmcourts.gov/
• 50 U.S.C. § 3951 (Servicemembers Civil Relief Act — eviction protection)

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. Use the official Form 4-904 NMRA for filing. Consult a New Mexico-licensed attorney before filing.