Service Members Civil Relief Act Soldiers and Sailers Civil Relief Act of 1940 Replaced By G. R. Fernambucq
On December 19, 2003, President Bush signed into law the “Servicemembers Civil Relief Act.” The Act took effect upon the President’s signature for any case which has not reached Final Judgment. This new law is a complete revision of the statute known as “The Soldiers and Sailors Civil Relief Act”. This statute was enacted in 1940, updated somewhat after the Gulf War in 1991, and was basically unchanged as of 2003. The old statute was broken into various “articles” ranging from “mortgage, liens, assignments and leases” to “taxes and public lands”. The Act, and the protection offered, was not invoked merely because a party was in military service. The Act only had application when such service prevented, or was preventing a member of the military forces from meeting their legal obligations in judicial proceedings.
The new Act expands the servicemember’s protections and rights to include not only temporary suspension of judicial proceedings but also temporary suspension of administrative proceedings and transactions as well. The Act now affords these protections and rights to servicemembers on active duty in all branches of the armed services as well as members of the National Guard called to active duty for over thirty (30) consecutive days to respond to a national emergency. It also applies to commissioned members of the Public Health Service, the National Oceanographic and Atmospheric Administration, and members of the Reserve Components (National Guard and Reserve).
The protections and rights under the new Act now cover servicemembers for periods of time he or she is absent from duty because of sickness, wounds, leave or other lawful cause. The Act also provides certain limited protection to include dependents (spouse, child, or anyone for whom the servicemember provided over half of the person’s support for the 180 days immediately preceding an application for relief under the Act).
The most important aspect of the Act is the availability to stay the proceeding confronting the servicemember or their dependents.
Section 201 of the Act applies if the servicemember has not made an appearance. The court must first make a determination that the absent or defaulting party is in military service. Before entering a judgment for the Plaintiff, the court or agency, shall require the Plaintiff to file an Affidavit stating whether the Defendant is in military service and showing the necessary facts in support of the Affidavit. If it appears that the Defendant is a servicemember, a Default Judgment may not be taken until after the court appoints an attorney to represent the Defendant. If the court cannot determine whether the Defendant is in military service, then the court may require the Plaintiff to post a bond as a condition of entry of a Default Judgment. Should the Defendant later be found to be a servicemember, the bond may be used to indemnify the Defendant against any loss or damage he or she may have incurred due to the Default Judgment. The Act specifically provides for criminal penalties for filing a knowingly false Affidavit.
In cases where there is no question that the Defendant is in military service, the court shall stay the proceedings for at least ninety (90) days (upon application of counsel or on the court’s own Motion) if:
- there may be a defense to the action and a defense cannot be presented without the presence of the Defendant, or
- after due diligence, appointed counsel has been unable to contact the Defendant or otherwise determine if a meritorious defense exists.
In situations where a Default Judgment is entered against a servicemember during his or her period of military service (or within 60 days after the end of service) the court shall reopen the Judgment to allow the servicemember to defend if:
- the servicemember was materially affected due to military service in asserting a defense, and
- the servicemember has a meritorious or legal defense to the action or some part of it,
- the application to reopen is filed within 90 days after the end of military service.
If the servicemember has notice of the proceeding and has filed an Application for Stay, Section 202 of the new Act applies. The Motion must include a “statement” as to how the current military duties materially affect their ability to appear, and it must state a date when the servicemember will be available to appear. It is not required to be an Affidavit or from the servicemember himself. It could be from their attorney, a Jag officer, or from some other person with knowledge of the facts in the statement. There must also be a “statement” from the servicemember commanding officer stating the servicemember’s current military duty prevents their appearance and that military leave is not authorized at the time of the statement. There is no indication that this statement be an Affidavit or, for that matter, in any particular format. A letter, memorandum or possibly an email should suffice. If all of this is before the court, the court is required to enter a stay of proceedings for at least ninety (90) days. An additional request for additional time may be made based on the continuing effect of the military duty on the servicemembers their ability to appear. The same information is required in the request for an additional stay. If the court refuses an additional stay, the court must appoint an attorney to represent the servicemember in the action or proceeding.
Covered servicemembers can request protection before any breach or default. Section 701 allows protected individuals to request “anticipatory relief”. This provision allows the servicemember to apply to a court for relief:
- from any obligation or liability incurred by the servicemember before the servicemember’s military service, or
- from a tax or assessment falling due before or during the servicemember’s military service.
This request can be made during the military service, or within 180 days of termination of or release from military service.
These anticipatory relief provisions can be used to request relief from pre-service obligations such as child support or alimony, when an anticipated failure to meet such an obligation is likely.
Be aware that the new Act continues to provide protection to the servicemember under certain circumstances. It is not automatic. Close consideration must be given to the “military necessity” which has caused the active duty status, and to the servicemember’s request for relief. Certainly, the nature and extent of the servicemember’s military obligation will be scrutinized in order to determine its impact on their ability to meet current obligations and/or to provide a defense in an administrative or judicial proceeding.
