The defendant, if he desires to claim such real estate or any part thereof as an exemption allowed by law, shall set up his claim of exemption by answer in such foreclosure suit.
History: Laws 1933, ch. 7, § 3; 1941 Comp., § 21-116; 1953 Comp., § 24-1-24.
ANNOTATIONS
Waiver of claim of exemption. — The defendant waives his claim of exemption in a foreclosure action when the defendant fails to appeal the denial of his claim of exemption within thirty days after a foreclosure decree is entered. Grygorwicz v. Trujillo, 2008-NMCA-040, 143 N.M. 704, 181 P.3d 696, rev’d, 2007-NMSC-009, 145 N.M. 650, 203 P.3d 865.
Claim of exemptions. — The defendant’s appeal was timely under Rule 12-201(D) NMRA because defendant’s motion for claim of exemptions on execution, filed subsequent to the final foreclosure decree, tolled the time for filing a notice of appeal, and defendant properly appealed within thirty days from the express denial of that motion and did not waive the right to a homestead exemption by failing to file an appeal within thirty days of the foreclosure decree. Grygorwicz v. Trujillo, 2009-NMSC-009, 145 N.M. 650, 203 P.3d 865.
Failure to claim exemption. — Where homestead exemption had not been claimed in trial court, it would not be considered by appellate court on review. Chavez v. Chavez, 1952-NMSC-050, 56 N.M. 393, 244 P.2d 781.
Mortgagors were not entitled to a homestead exemption against junior judgment lienholders when they had an opportunity to advance claims for such exemption in their answers to the cross claims which sought foreclosure of the liens, but failed to do so, and thereby failed to comply with this section. Speckner v. Riebold, 1974-NMSC-029, 86 N.M. 275, 523 P.2d 10.
To be entitled to a homestead exemption under this section and 42-10-9 NMSA 1978 (prior to the 1979 amendment of 42-10-9 NMSA 1978), a party had to claim the exemption in his answer to a foreclosure action; otherwise, he could not claim it. US Life Title Ins. Co. v. Romero, 1982-NMCA-068, 98 N.M. 699, 652 P.2d 249, cert. denied, 98 N.M. 336, 648 P.2d 794.