Protecting Military Families: The New Servicemembers Civil Relief Act

Protecting Military Families: The New Servicemembers Civil Relief Act
by Peter Cushing

On December 19, 2003, President Bush signed Pub. L. No. §108-189, making major amendments to the former Soldier's and Sailor's Civil Relief Act (SSCRA, 50 U.S.C. App. §501-594(2000). The new law is called the Servicemembers Civil Relief Act (SCRA) and contains renumbered sections from 101-704. The new legislation is largely based upon a Department of Defense Draft Revision completed in 1991 after the first Gulf War, and updated in 1992 and 2003. According to the Office of the Judge Advocate General, U.S. Army, Legal Assistance Policy Division, the goals of the draft were to make the act easier to read and understand, incorporate into the act many years of judicial interpretation, and to update the act to take into account generally accepted legal practices and new developments in American life. Many of the new sections of the law clarify areas of disagreement among military law experts and make case law interpreting the former SSCRA moot. The new law significantly strengthens the former SSCRA and for the benefit of both the active duty member and his or her dependents.

Summary of Changes to the Old SSCRA
1) The act is expanded to cover any civil or administrative proceeding, §101(5) and (2), but not criminal proceedings;

2) Automatic 90-day stay provision. The new law makes the first 90-day stay mandatory upon application of the servicemember if he or she shows that he or she is on active duty, that military duties materially affect the servicemember's ability to appear and defend, and states a time when he or she can appear (§202);

3) Provision is made to appoint an attorney for the servicemember if at the end of the initial stay another is requested and denied (§202(d));

4) Enhances protection for pre-service real estate lease contracts precluding eviction from premises where rent does not exceed $2400 rather than the previous $1200 without compliance with the act (§301); however, allows the servicemember to terminate his or her home lease on 30 days' notice if deployed (§305);

5) Protects preservice real estate and personal property installment contracts by preventing creditors from repossessing the secured property without court order, for nonpayment or breach occurring before or during military service (§302);

6) Allows termination of preservice motor vehicle leases by the member if called to active duty for not less than 180 days; or, if on active duty, is deployed for more than 180 days (§305(b));

7) Prevents sellers of life insurance from decreasing coverage or increasing premiums upon entry onto active service, if the member had the insurance for 180 days before being activated (§401);

8) Provides health insurance cancellation protection requiring reinstatement without penalty upon release from active duty without exclusions or waiting periods (§704).

The SCRA applies primarily to members of the Uniformed Services, which includes the Army, Navy, Coast Guard, and Marine Corps. "Servicemembers" also include commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration. Also covered are members of the National Guard called to active service for a period of more than 30 consecutive days. (§101) Members of the reserve ordered to report to active duty and those inducted are covered. (§106) Also, U.S. citizens serving with foreign forces in the prosecution of a military action, allied with the U.S., are covered. (§104) Persons who are secondarily liable such as guarantors, sureties, endorsers, comakers, or other such persons may also receive the benefits of the act by the court, if fair and equitable. (§103) Those who post bail for servicemembers are protected. (§103(c))

The SCRA applies to each of the 50 states and subdivisions thereof and to all territories subject to the jurisdiction of the U.S. (§102) The act applies to any judicial or administrative proceeding commenced in any court or agency. Criminal proceedings are not covered.

The law does allow its benefits to be waived, in writing, in a separate instrument from the basic obligation, if the waiver is accomplished after the period of active service. The writing must specify the instrument to which it applies. This provision applies to contracts, bailments, mortgages, trusts, security instruments, and similar obligations. (§107)

In actions where no notice of appearance has been filed by the servicemember, the court, before entering judgment for the plaintiff, shall require the plaintiff to file an affidavit with the court stating whether or not the defendant is in the military service and showing necessary facts to support the affidavit or if the plaintiff is unable to determine whether the defendant is in the military service, plaintiff must file an affidavit stating this. (§201(b)) If the affidavits filed in the action do not provide enough information for the court to determine whether or not the defendant is in the military service, the court may require the plaintiff to post a bond before entering judgment to indemnify the defendant from any loss of damage occasioned by the judgment, should the judgment be later set aside, in whole or in part. (§201(a)(3)) A person who files a false affidavit regarding the defendant's military status, knowing it to be false, has committed a federal offense. (§201(c))

If the defendant is a "servicemember," i.e., is on active military service, the court may not enter judgment until it appoints an attorney to represent the defendant. (§201(a)(2)) The court-appointed attorney must attempt to locate and communicate with the defendant. If the court-appointed attorney cannot locate the defendant, the actions of the attorney in the case do not waive any defense of the servicemember or otherwise bind the servicemember.

If the defendant is in military service, i.e., on active duty, the court shall grant a stay of proceedings for a minimum period of 90 days upon application of counsel, or on the court's own motion, if the court determines that:

1) There may be a defense to the action and the defense cannot be presented without the presence of the defendant; or

2) After due diligence, counsel has been unable to contact the defendant, or otherwise determine if a meritorious defense exists. (§201(d))

This provision is a significant strengthening of the act, by requiring a mandatory 90-day stay if the requirements of the statute are met.

If a default judgment is entered against a servicemember during the servicemember's period of active service or within 60 days after termination of or release from active service, the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that:

1) The servicemember was materially affected by reason of that military service in making a defense to the action; and

2) The servicemember has a meritorious defense to the action or some part of it. (§201(g))
To take advantage of this provision, the servicemember must file his motion not later than 90 days after the date of termination of or release from military service. (§201(g)(2)) However, this section shall not impair the rights of a bona fide purchaser for value. (§201(h))

In cases in which the servicemember has notice of the proceedings, different procedural rules apply. At any stage before final judgment in a civil action or proceeding in which a servicemember is a party, the court may on its on motion, and shall upon application by the servicemember, stay the action for a period of not less than 90 days if the following conditions are met in an application filed for a stay:

1) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear;

2) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.

Abolishing case law, the statute further provides that an application for stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense, including a defense relating to lack of personal jurisdiction. (§202(c))

In family law proceedings involving support issues, one should not assume that the court will grant a stay or delay of court proceedings simply because the defendant is on active military service. In the modern world, testimony can be presented by videotape, telephonic depositions, or over the telephone. When the issue is temporary child support and alimony, the needed information is primarily financial in nature. Military pay is a matter of public record. The military pay tables are available at www.dfas.mil, the Web site of the Defense Finance and Accounting Service. Thus, it is difficult to see how a stay would be needed or appropriate in most family matters requesting temporary relief. In Massey v. Kim, 455 S.E. 2d 306 (Ga. Ct. App. 1995), the servicemember asked for a delay until the end of his overseas tour. The court denied the request, pointing out improvements in modern communication since the passage of the SSCRA. Similarly, in Keefe v. Spangeenberg, 533 F. Supp. 49 (W.D. Okla. 1981), the court denied the servicemember's request for a delay, pointing out that the member could appear by videotape under the federal rules of civil procedure. Also, if temporary relief is requested, these hearings do not result in final orders; they merely serve to support the family pending the entry of a final judgment and as such, do not prejudice the servicemember's rights. Shelor v. Shelor, 383 S.E. 2d 895 (Ga. 1989). Last, the Welfare Reform Act of 1996 requires that the armed forces issue regulations to grant leave for servicemember's to appear in court and administrative paternity and child support hearings. DOD Directive 1327.5, Leave and Liberty (IO 4, 10 Sept. 1997).

When one stay of proceedings is insufficient, the servicemember may apply for an additional stay based upon continuing material effect of military duty upon the servicemember's ability to appear. Such an application may be made at the time of the initial application for stay or at a later time when it appears that the servicemember will be unable to appear after the first 90-day stay. A second application must contain the same facts and information as required by law in the first application.

If the court in its discretion refuses the additional stay, the court shall appoint counsel to represent the servicemember in the action or proceeding. Under §206 of the SCRA, the statute of limitations is tolled during the period of the servicemember's military service for the bringing of any action or proceeding in a court, board, bureau, commission, or department of a state or political subdivision of a state or the U.S. by or against the servicemember or his heirs, executors, administrators, or assigns.

Under §207 of the SCRA, an obligation or liability incurred by the servicemember or by the servicemember and his or her spouse jointly before the servicemember's entry onto active military service, shall not bear interest at a rate in excess of six percent during the period of military service. Any interest that would have been incurred is automatically forgiven by law. Payments are to be reduced accordingly. However, the servicemember, to take advantage of the act, must, within 180 days of termination or release from active military service, provide written notice and a copy of his military orders to the creditor. A court may grant a creditor relief from the interest rate limitation if, in the opinion of the court, the servicemember's ability to pay the contractual interest is not materially affected by reason of the member's military service. The term "interest" is defined to include renewal charges, service charges, and any other charges (except bona fide insurance) with respect to the obligation.

Under §301 of the SCRA, a landlord, except by court order, may not evict or subject premises to distress of a servicemember or the dependents of a servicemember during a period of military service from premises that are occupied or intended to be occupied primarily as a residence and for which the monthly rent does not exceed $2400, as adjusted year to year by the Consumer Price Index.

Upon application for eviction or distress, the court on its own motion may, and shall, if a request is made by or on behalf of a servicemember whose ability to pay the agreed rent is materially affected by military service:

Stay the proceedings for a period of 90 days, unless, in the opinion of the court, justice and equity require a longer or shorter period of time; or adjust the obligation under the lease to preserve the interests of all parties. The court may also order an allotment be taken out from the pay of the servicemember to satisfy the terms of the order, in accordance with regulations prescribed by the Secretary concerned. (§301(d))

Under §301(c) it is a misdemeanor to knowingly take part in an eviction or distress action against a servicemember. Other civil remedies are preserved to the servicemember.

Under §302 of the new act, a servicemember is afforded substantial protections upon breach of contract of a preservice ob
litigation regarding real or personal property. This section applies to contracts for the purchase, lease, or bailment of real or personal property. After the servicemember enters active service, such a contract may not be rescinded or terminated for a breach of its terms occurring before or during military service, nor may the property be repossessed without a court order. The act gives the court authority at a hearing to order repayment to the servicemember of all or part of the prior installments as a condition of terminating the contract and allowing the creditor to repossess the property. The court may also stay the proceedings because the servicemember's ability to comply with the contract is found to be materially affected by military service, or make such other disposition as the court finds is equitable to preserve the interests of all parties. (§302(c))

A person who knowingly resumes or attempts to resume possession of property in violation of the law is guilty of a misdemeanor. (§302 (b)) All other remedies the servicemember may have are preserved by law.

Under §303 of the act, a servicemember is afforded protection with respect to real or personal property owned by a servicemember with respect to a contract that originated before military service commenced and for which the servicemember is still liable and which is secured by a mortgage, trust deed, or other security in the nature of a mortgage. In an action filed during, or within 90 days after, a servicemember's period of military service to enforce an obligation secured by a mortgage, the court may on its own motion and shall, on motion of the servicemember, stay the proceedings for the period of time required by justice upon a finding that the servicemember's military service has materially affected his/her ability to comply with the obligation or the court may adjust the obligation to preserve the interests of all concerned. Further, a sale, foreclosure, or seizure of property for breach shall not be valid if made during a period of military service or within 90 days thereafter except upon a court order granted before such sale, foreclosure, or seizure with a return made and approved by the court or if made pursuant to a valid agreement.

A person who knowingly makes or causes to be made a sale, foreclosure, or seizure as provided in the law commits a misdemeanor. (§303(c)) All other remedies the servicemember may have are preserved by law.

Section 304 of the new law provides that when a stay is granted in a proceeding to foreclose a mortgage or to repossess personal property, the court may appoint three disinterested parties to appraise the property. Based on the appraisal, and if undue hardship to the servicemember's dependents will not result, the court may order that the amount of the servicemember's equity in the property be paid to the servicemember, or the servicemember's dependents, as a condition of foreclosing the mortgage, or rescinding or terminating the contract. In this connection, the term "dependent" means the servicemember's spouse, child, or an individual for whom the servicemember provides more than one half of support for the 180 days immediately preceding an application for relief under the act. (§101(4))

Under §305 of the new act, certain leases may be terminated by the servicemember upon entry into the military service:

A lease of premises occupied, or intended to be occupied by a servicemember or a servicemember's dependents for a residential, professional, business, agricultural, or similar purpose if:

1) The lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service; or

2) The servicemember, while in military service, executed the lease and thereafter received military orders for a permanent change of station or to deploy with a military unit for a period of not less than 90 days.

A lease of a motor vehicle used, or intended to be used, by a servicemember or a servicemember's dependents for personal or business transportation if:

1) The lease is executed by or on behalf of a person who thereafter and during the term of the lease enters military service under a call or order specifying a period of not less than 180 days; or

2) The servicemember, while in military service, executes the lease and thereafter receives military orders for a permanent change of station outside of the continental U.S. or to deploy with a military unit for a period of not less than 180 days.

Under §305(c) of the law, the servicemember may terminate leases, in general, by hand delivery or delivery by certified mail, return receipt requested of a written notice of termination, along with a copy of his/her military orders to the lessor, and return to the lessor of the motor vehicle by the servicemember. With respect to premises, the lease termination is effective 30 days after the first date on which the next rental payment is due and payable after the date the notice of termination is delivered. With respect to motor vehicles, the lease is terminated, in general, on the date the written notice and delivery of the motor vehicle is accomplished. The lessor may charge, on a prorated basis, rents or lease amounts accruing before the lease termination but may not impose an early termination charge. Reasonable excess wear, use, and mileage charges are permitted.

The law preserves to the servicemember any civil remedies he may have for wrongful conversion, including any possible award of consequential or punitive damages. (§305(h)(2))

The law provides that it is a misdemeanor for any person to knowingly seize, hold, or detain the personal effects, security deposit or other property of a servicemember or a servicemember's dependent who lawfully terminates a lease pursuant to the act, or who knowingly interferes with the removal of such property from premises covered by the lease, for the purpose of subjecting or attempting to subject any of such property to a claim for rent accruing subsequent to the date of lease termination. (§305(h))

Under §307 of the act, a person holding a lien on the property or effects of a servicemember may not, during any period of military service of the servicemember and for 90 days thereafter, foreclose or enforce any lien on such property without a court order. A "lien" includes a lien for storage, repair, or cleaning, or for any other reason.

In a proceeding to foreclose or enforce a lien, the court may on its own motion, and shall if requested by the servicemember whose ability to comply with the obligation is materially affected by military service:

1) Stay the proceeding for a period of time as justice and equity may require;

2) Adjust the obligation to preserve the interests of all parties.

As in other pertinent sections, it is a misdemeanor offense to knowingly violate this section, and all civil remedies are preserved to the servicemember. See §307(c)(1)and (2).

Upon application to the court, a dependent of a servicemember is entitled to the protections of the act if the dependent's ability to comply with a lease, contract, bailment, or other obligation is materially affected by reason of the servicemember's military service. Previous case law excluding dependents from the protection of the act may no longer be valid, in appropriate cases.

Changing the law, the new SCRA provides that a legal representative for a servicemember under the act is either an attorney acting on behalf of a servicemember or an individual possessing a power of attorney. All references in the act to servicemember are to be treated as including a reference to a legal representative of a servicemember. A legal representative can take the same actions as the servicemember himself and can bind the servicemember, thus changing the previous statute found at 50 U.S.C. Appx. 520(3).

The new law significantly enhances protections for the servicemember in the areas of court and administrative proceedings in all states and territories and federal proceedings. The act should be reviewed by all family law practitioners representing individuals on active military service and by all attorneys representing banks, mortgage companies, institutional lenders, and the like. The judiciary is given the ultimate discretion to balance the needs of the servicemember and his or her family against the legitimate claims of creditors. The criminal and civil penalties provided by the act for knowing violations of its provisions should be sufficient to ensure compliance with its provisions and provide stability at home for the servicemember and his other dependents serving here or abroad.

Peter Cushing is a graduate of Syracuse University College of Law and a board certified marital and family attorney. He is a member of the Florida, New York, and Hawaii bars and a captain, Judge Advocate General's Corps, USNR, retired. He has practiced family law in Orlando since 1984.
This column is submitted on behalf of the Family Law Section, Evan R. Marks, chair, and Kristen Adamson-Landau, editor.