All too often, servicemembers assume that their protections under the Servicemembers Civil Relief Act (SCRA) are tantamount to absolute immunity from suit. That is not the case. In a recent case, the Alaska Supreme Court upheld a lower court’s ruling that increased the amount of child support the servicemember had to pay.
It is important to note that the servicemember was not alleging that his participation in the court action was impossible because of his duties, nor was a stay requested. In fact, he had participated in the lower court proceedings by filing pleadings. The servicemember had contended that he was no allowed to be present at the hearing or speak; but, the court held that this type of case can be decided by a court on the pleadings, and no one had raised the issue of whether the income reports, upon which the court relied, were accurate.
A good summary appears in the Army Times at http://www.armytimes.com/article/20131024/NEWS/310240027/SCRA-doesn-t-preclude-child-support-increase-court-rules
Courts usually apply the Servicemembers Civil Relief Act to require that the plaintiff provide a military affidavit (also called a non-military affidavit, SCRA Affidavit, Affidavit of Military Service, and many other iterations) to attest to whether the defendant is subject to the protections of the SCRA. Many courts require that the Plaintiff take exhaustive efforts to provide this attestation which would satisfied by using www.ServicemembersCivilReliefAct.com or the DMDC (if the social security number is known).
Rarely, the Plaintiff simply cannot provide confirmation one way or the other. In such situations, the Clerk of the Court may not enter a default judgment. Only a judge may do so and the Court may condition the entry upon the Plaintiff securing a bond.
The Uniform Services Employment and Reemployment Rights Act (USERRA) (distinct from the Servicemembers Civil Relief Act (SCRA)) spells out that reservists and National Guard members who return to their jobs from military service do not suffer any consequences from their military service and that employers no discriminate against active-duty troops.
A recent study by Rand found that almost 25% of employers did not understand these rights and did not even know where to turn for information. The biggest violator? The United States Government and its federal agencies.
The study did not recommend any changes to the legislation. Instead, more outreach by the Department of Defense was recommended to clarify the protections available to active and former members of the military.
The Servicemembers Civil Relief Act found in the Appendix to 50 USCA 501 et seq. refers to “Servicemember”, but you must look elsewhere in the U.S. Code to find further definitions.
First, see the definitions of “uniformed services” (the broader term) and “armed forces” (one component “uniformed services”) at 10 U.S.C.A. § 101:
(4) The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(5) The term “uniformed services” means–
(A) the armed forces;
(B) the commissioned corps of the National Oceanic and Atmospheric Administration; and
(C) the commissioned corps of the Public Health Service.
When does active service end? Generally, there is forced retirement once a person is 64 years old. Under rare circumstances when a person’s grade is above major general or rear admiral, the age can be 66 or 68 if approved specifically by the President or the Secretary of the Department of Defense. See 10 U.S.C.A. § 1253:
§ 1253. Age 64: regular commissioned officers in general and flag officer grades; exception
(a) General rule.–Unless retired or separated earlier, each regular commissioned officer of the Army, Navy, Air Force, or Marine Corps serving in a general or flag officer grade shall be retired on the first day of the month following the month in which the officer becomes 64 years of age.
(b) Exception for officers serving in O-9 and O-10 positions.–In the case of an officer serving in a position that carries a grade above major general or rear admiral, the retirement under subsection (a) of that officer may be deferred–
(1) by the President, but such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age; or
(2) by the Secretary of Defense, but such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 66 years of age.
Merchants always want to explore new areas of advertising and promotion. Often a discount may be offered to those on active military duty. Once a relationship is opened with a customer, there are times when the customer asks to terminate a contract or exercise some rights under the Servicemembers Civil Relief Act.
How do you verify the customer’s claim that he is on active duty? You can request paperwork which might be cumbersome (like the Military Leave and Earnings form (“LES”), deployment orders, DD Form 214, or military ID), but you might have trouble reading the documents or determining if they are legitimate.
There is an easier way. Inquiries can be submitted at www.ServicemembersCivilReliefAct.com. If your inquiries exceed 750/month, you might qualify for batch services at www.SCRA.com which is a seamless, fully-automated, secure module that integrates into your own data base.
Under the Servicemembers Civil Relief Act (“SCRA”) a condition precedent to obtaining a default judgment is the filing of an affidavit. Depending upon the jurisdiction, this affidavit may be called an SCRA Affidavit, Military Affidavit, Non-Military Affidavit, Affidavit of Military Duty, Affidavit Pursuant to the SCRA, etc.
“Judgement” as used in the SCRA, is an expansive term and covers not only the single time when a judge determines that an amount of money is owing. It includes temporary judgments, rulings, orders, and decrees.
The affidavit has to be sworn to, be under penalty of perjury, and must indicate one of the following:
- that the defendant in the action is NOT in military service
- that the defendant in the action IS in military service, or
- that the affiant (the person signing the affidavit) does not know if the defendant is in military service.
Great care should be taken in executing the affidavit because there can be criminal penalties, not to mention fines, if the affidavit is false. You can research through Google the very large penalties assessed against eager creditors who filed sloppy or incorrect military affidavits in a rush to obtain a judgment.
Utilizing the Servicemembers Civil Relief Act Centralized Verification Service (SCRACVS) provides the assurance of compliance at minimal cost.
A creditor or lender is prohibited from taking action against a Servicemember simply because the servicemember has invoked his/her rights under the Servicemembers Civil Relief Act (“SCRA”). This prohibition lasts forever (for example, the prohibition does not end when the tour of active duty ends.
But, OTHER factors may give the creditor the right to make negative comments to credit bureaus or the right to deny additional extensions of credit. If a soldier announces that he wants the interest rate rolled back to 6%, the creditor may take no negative action. BUT, if the soldier stops paying on the existing loan, the creditor is free to report the delinquency.
The proposed Family Home Protection Act (H.R. 1842) would enhance the protections under the Servicemembers Civil Relief Act:
- Extend protection against foreclosure to houses purchased after entry into active military service.
- Foreclosures stayed for any servicemember receiving imminent danger or hostile fire pay.
- Foreclosures stayed for 12 months if servicemember is medically discharged or placed on convalescent status.
- SCRA would apply to spouses of deceased servicemembers.
- Higher penalties to be assessed against lenders who discriminate against servicemembers or surviving spouses.
- Revision of definition of primary residence so that, if a servicemember is required to relocate, s/he can refinance the home.
After a servicemember asks a creditor for relief under the Servicemembers Civil Relief Act, the lender must be cautious. Unless there are other, distinct, and relevant factors, the lender may not take adverse action against the servicemember. The creditor may not refuse to issue other credit to the individual, just because the servicemember exercised his/her rights. If, based upon a review of the servicemembers credit, the servicemember does not qualify, that is acceptable; but, the creditor may not base its decision solely upon the exercise of rights. Nor can the lender unilaterally decide to change the existing credit agreement with the servicemember, or make a negative report to a credit bureau solely based upon the notification (that is not to say that, if the servicemember is delinquent, that the creditor is forbidden from notifying a credit bureau).
In Massachusetts there is a proceeding filed by a foreclosing lender soley to determine if a debtor is subject to the protections of the Servicemembers Civil Relief Act (“SCRA”).
In a recent Massachusetts Supreme Court decision, the court ruled that i) the lender had standing to bring this limited purpose action even though it had failed to show it was the holder of the mortgage or of the note (based upon the principle that the lender had a contractual right to purchase the mortgage and ii) the borrower lacked standing to contest the lender’s petition, because the borrower was not entitled to the protections of the SCRA.