Buckingham v. Ryan, 1998-NMCA-012, 124 N.M. 498, 953 P.2d 33 (N.M. Ct. App. 1997)

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Citation: 1998-NMCA-012, 124 N.M. 498, 953 P.2d 33 (decided Dec. 17, 1997)
Court / Year: New Mexico Court of Appeals, 1997 (1998 NMCA No. 012)
Topic tags: forfeiture · election_of_remedies · remedies
Facts: Buyer purchased a six-unit Albuquerque apartment complex for $107, 000 w i t ha$ 25,000 down payment and $700/ m o t o an escro w a g e n t . A f t er tw o l a t e p a y m e n t s w i t hina s h or tp er i o d, t h ese ll erser v e d a d e f a u lt n o t i ce; t h eescro w a g e n t (p er t h eco n t r a c t an d n o t i ce) re f u se d a$ 700 tender that omitted $81.65 ina tt or n ey f ees . T h ese ll er t er mina t e d t h e b u ye r^{'} sr i g h t s, re t ain e d t h e$ 25,000 down payment (plus $3, 500 in p a y m e n t s) a s l i q u i d a t e dd ama g es, an d so l d t h e p ro p er t y t h ree d a ys l a t er f or$ 85,000. The seller also counterclaimed and was awarded $18,704 in contract damages.
Holding: (1) The forfeiture was affirmed — it did not shock the conscience. (2) The contract-damages award was reversed: having elected forfeiture, the seller could not also recover breach-of-contract damages (double recovery).
Reasoning: Forfeiture clauses are generally enforceable absent unfairness that shocks the conscience, judged by the four Russell factors; “the forfeiture of a large down payment [will not] shock the conscience of the court in every case” — it is one factor. Here the property had deteriorated, the buyer collected/could collect rent, and the buyer was repeatedly late. But “when a buyer defaults … and the seller repossesses the property, this ‘constitutes an election of remedies and amounts to a rescission of the contract, precluding further recovery from the buyer’” (quoting Graham v. Stoneham); the seller cannot keep the forfeited payments and recover damages.
Practical impact for CFD operators/buyers: The leading modern New Mexico statement of both the four-factor test and the election-of-remedies bar. A seller must choose forfeiture or suit on the debt/foreclosure — not both.
Good-law status: Good law.
Source (retrieved): https://static.case.law/nm/124/cases/0498-01.json · Verified: 2026-06-08

Jurisdictions that follow / cite: new-mexico

Disclaimer. Legal information, not legal advice. Confirm the opinion is still good law before relying on it.

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Buckingham v. Ryan (1998)

Buckingham v. Ryan, 1998-NMCA-012, 124 N.M. 498, 953 P.2d 33 (N.M. Ct. App. 1997)

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