In all actions brought for the foreclosure of any real estate mortgage or deed of trust where the plaintiff alleges in his complaint that any person who is now deceased, during his lifetime, claimed a lien upon the real estate described in said mortgage or trust deed and further alleges either that there has been no administration of such decedent's estate, or that the plaintiff is unable to ascertain the names, residences and whereabouts of the heirs, devisees or legatees of such deceased person he may make such unknown heirs, legatees and devisees of any such deceased person parties defendant to said cause under the name, style and designation of "unknown heirs, devisees, or legatees, of (here insert name of deceased person), deceased"; and service of process on and notice of said suit against such defendants shall be made as provided by law and the rules of court.

History: Laws 1937, ch. 134, § 1; 1941 Comp., § 21-216; 1953 Comp., § 24-2-16.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For rule of procedure relating to service of process, see Rule 1-004 NMRA.

Applicability of article. — While 39-5-1 to 39-5-3 and 39-5-15 to 39-5-23 NMSA 1978 apply generally to foreclosures, 39-5-5 to 39-5-13 NMSA 1978 apply only to sales and levies under writs of execution. Armstrong v. Csurilla, 1991-NMSC-081, 112 N.M. 579, 817 P.2d 1221.

Judgment of foreclosure was void based on a lack of service of process on the unknown heirs, legatees, and devisees of the original debtor and mortgagor. — In a foreclosure action, where the original debtor and mortgagor died during the foreclosure proceedings, and where there was never an attempt by plaintiff to serve process on the unknown heirs, devisees, or legatees of decedent, and therefore the heirs of decedent were not given proper notice or given the opportunity to assert any claims they may have had or to protect their interests in the property, the underlying judgment of foreclosure was void based on the lack of service of process. A judgment entered absent sufficient service of process upon a defendant violates due process and is void as to the defendant for want of personal jurisdiction. Kaushal v. Santa Fe Community Housing Trust, 2025-NMSC-029, vacating 2021-NMCA-010 and A-1-CA-39814, mem. op. (Ct. App. May 16, 2023)(nonprecedential).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Mortgage foreclosure forbearance statutes - modern status, 83 A.L.R.4th 243.

59 C.J.S. Mortgages § 630.