Rule 1-017.Parties plaintiff and defendant; capacity

Last amended July 1, 2017 · Last verified June 26, 2026

In one sentenceRule 1-017 requires actions to be brought by the real party in interest, sets capacity to sue or be sued, and adds special rules for wrongful-death representatives, minors, and consumer-debt claims.

Full Text of Rule 1-017

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A. Real party in interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, 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 that person’s own name without joining 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. Wrongful death actions; personal representative. An action for wrongful death brought under Section 41-2-1 NMSA 1978 shall be brought by the personal representative appointed by the district court for that purpose under Section 41-2-3 NMSA 1978. A petition to appoint a personal representative may be brought before the wrongful death action is filed or with the wrongful death action itself.

C. 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.

D. Infants or incompetent persons. When an infant 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 infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make any other order as it deems proper for the protection of the infant or incompetent person.

E. 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 certification complying with Rule 11-902(11) or (12) NMRA. The business records must be attached to the affidavit or certification.

End

Rule History

[As amended, effective January 1, 1997; as amended by Supreme Court Order No. 14-8300-010, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 16-8300-031, effective for all cases pending or filed on or after July 1, 2017.]

Committee Commentary

2014 amendment

NMSA 1978, Section 41-2-3 provides that an action for wrongful death brought under NMSA 1978, Section 41-2-1 “shall be brought by and in the name of the personal representative of the deceased person.” The Court of Appeals has ruled that the personal representative referenced in Section 41-2-3 is distinguishable from the personal representative of the estate of the deceased as defined in the Probate Code. See In re Estate of Sumler, 2003-NMCA-030, ¶ 8, 133 N.M. 319, 62 P.3d 776 (“[I]t is improper to equate a personal representative under the Wrongful Death Act with a personal representative as defined by the Probate Code.”). To maintain the distinction between a traditional personal representative and one appointed to maintain a wrongful death action, Paragraph B now provides that only a personal representative appointed by the district court may bring a wrongful death action. A personal representative as defined by the Probate Code may seek appointment from the district court under Section 41-2-3 as the personal representative for the purpose of filing and maintaining a wrongful death action under Section 41-2-1.

Paragraph B also provides that the person seeking to become the personal representative may petition the court for appointment either before the filing of the wrongful death action or in the wrongful death action itself. See In re Estate of Sumler, 2003-NMCA-030, ¶ 10 n.1 (“[W]e see no reason why a petition for appointment of a Section 41-2-3 personal representative may not be brought with the wrongful death action itself, assuming that all necessary parties are subject to joinder in the forum where the wrongful death action is brought.” (internal citations omitted)). Failure to appoint a personal representative before the filing of a wrongful death action is not a jurisdictional defect and, under proper circumstances, may be accomplished after the action is filed. See Chavez v. Regents of University of New Mexico, 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.

2016 amendment

Paragraph E of this rule provides additional protections to consumers in consumer debt collection cases. See Comment to Rule 1-009 NMRA. Paragraph (E)(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 State v. Cofer, 2011-NMCA-085, ¶ 17, 150 N.M. 483, 261 P.3d 1115 (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”) (internal quotation marks and citation omitted); Bank of New York v. Romero, 2014-NMSC-007, ¶ 33, 320 P.3d 1.

[Adopted by Supreme Court Order No. 14-8300-010, effective for all cases pending or filed on or after December 31, 2014; as amended by Supreme Court Order No. 16-8300-031, effective for all cases pending or filed on or after July 1, 2017; as amended by Supreme Court Order No. 17-8300-022, effective for all cases pending or filed on or after December 31, 2017.]

Plain-English Summary

This rule decides who may stand as a party. Every action must be prosecuted by the real party in interest, though executors, trustees, and others authorized by statute may sue in their own names; when an honest mistake names the wrong party, the court allows a reasonable time to ratify, join, or substitute the real party, with the same effect as if the case had started correctly. A wrongful-death action must be brought by a personal representative appointed by the district court for that purpose, and that petition may come before or with the wrongful-death suit.

Capacity to sue or be sued is set by New Mexico law for individuals and by the law of organization for corporations. An infant or incompetent person may sue through a representative, a next friend, or a guardian ad litem, and the court appoints a guardian ad litem when needed. A detailed consumer-debt subsection lets collection agencies sue in their own names as real parties in interest only through a licensed attorney and on specific pleaded facts, and requires a party enforcing a debt it did not originate to file an affidavit establishing the chain of title, supported by admissible business records. As the committee commentary explains, these consumer-debt protections were added in 2016 alongside Rule 1-009.

Frequently Asked Questions

Who must bring a lawsuit under this rule?

The real party in interest—though representatives such as executors, trustees, and others authorized by statute may sue in their own names. An honest mistake about the proper party can be cured by ratification, joinder, or substitution.

Who brings a wrongful-death action in New Mexico?

A personal representative appointed by the district court specifically for that purpose under Section 41-2-3, which is distinct from a probate personal representative.

What must a debt buyer show to sue on a consumer debt?

A party enforcing a debt it did not originate must file an affidavit, based on personal knowledge and supported by admissible business records, establishing the chain of title or assignment from the original creditor.

Source & verification. Rule text and Committee commentary reproduced verbatim from the New Mexico Rules of Civil Procedure for the District Courts (Rule 1-017 NMRA), published by the New Mexico Compilation Commission (NMOneSource). Promulgated by the Supreme Court of New Mexico. The plain-English summary is original and draws on the official annotations. Last verified June 26, 2026. · Official source

Also known as: real party in interestcapacity to suewrongful death personal representativeguardian ad litemconsumer debt assignment