Why Do I Need an Affidavit of Due Diligence?

affidavit-of-due-diligence

When, despite all your best efforts, you cannot determine the military status of the defendant in your court case, you will need an affidavit of due diligence.

Some businesses deal with members of the military more than others. These include bankingproperty managementpublic storage and more. Due to the nature of these industries, you are likely to encounter tenants who may be late on their rent or customers who may pay their loans or mortgages late.

After a time, your only recourse may be to file suit in an attempt to recoup the missed payments. However, it’s imperative to check the military status if you plan to file suit against the customer or tenant. Otherwise, you risk violating the Servicemembers Civil Relief Act.

The Servicemembers Civil Relief Act is a federal law that provides protections to members of the armed service who are on active duty. This includes the Army, Navy, Air Force, Marines and in some instances the National Guard and the Army Reserves. Among the benefits it offers are protections against some court actions — including foreclosures, evictions and repossessions — without first obtaining a court order. It also guarantees those it covers an interest rate not greater than 6% on any type of loan, including mortgage loans, auto loans, student loans, personal loans and credit card balances.

Moving forward with a court case against an active-duty servicemember without a court order is a violation of the SCRA. Businesses found to have violated the rights of servicemembers have been slapped with fines and other penalties. In some instances, the Department of Justice has made these businesses pay back the money they illegally collected from clients, sometimes with interest.

Thus, it’s important for businesses to do their due diligence before moving forward with legal proceedings and make every effort to attempt to find out the defendant’s military status so their rights are not violated.

But how do you determine the military status of a defendant and what constitutes due diligence?

Military Status Verification Process

When a business or individual must get a military status verification, they often contact the  Servicemembers Civil Relief Act Centralized Verification Service. Ideally, the owner, landlord or representative of the plaintiff provides us with the defendant’s Social Security number. Then, using this information, our service can provide a definitive military status verification, usually the same day.

Having the Social Security number makes the process infinitely easier and faster. The Department of Defense will not issue a complete military status verification without this informat. You can submit just the date of birth, but the form comes back with bolded language on the Defense Department’s certificate stating the results are not guaranteed, and that might annoy a judge.

But if you don’t have the debtor’s Social Security number, the SCRACVS can still help you. Using other identifying legal information, such as name, birth date, address, driver’s license number, relatives’ names, etc., we can search secure databases throughout the country to help us find the Social Security number. Providing this type of data to us when you place the order is important because it saves time and moves along the legal proceedings faster.

The databases we use usually contain data gathered from financial records such as bank statements, bills, orders from vendors, magazine subscriptions, etc., as well as some court, Department of Motor Vehicles and voting records, depending upon the debtor’s state of residence. The databases also may include variations on a name, phone numbers, professional licenses and more.

When You Need an Affidavit of Due Diligence

Alas, there are some times when, despite having done our due diligence, we cannot determine a debtor’s military status even when using all the tools available to us. Often this is not because the information can’t be found, but because not enough reliable information exists.

In some instances — such as with foreign nationals, very young or very old people — the defendant may not be in any system or database. Searches for legal documents may also yield no results if the debtor’s name is incorrect, misspelt or is an alias. Conversely, if the defendant has a common name, there may be too many legal documents under this name to narrow them down with certainty.

What do we do then?

We issue you an affidavit of due diligence.

This notarized affidavit outlines the efforts we made — unsuccessfully — to find the information required by the DOD. It allows your legal case to move through the system more quickly, without aggravating, time-consuming continuances and requests for legal documents that may be unavailable indefinitely.

While each judge has the discretion to review a form or document and ultimately reject it, we have not heard of any rejecting our affidavits of due diligence demonstrating the efforts we made.

The charge for an affidavit of due diligence is $20. Overnight delivery of your legal affidavit is available if you order by 3 p.m. EST, business days only.

Take the easiest and fastest route to a resolution of your dispute with a customer or tenant by relying on the SCRACVS to search for and find the legal documentation and affidavits you need. Contact us today or sign up for your free account to get started.

To order an affidavit of due diligence, register or log in.

Roy L. Kaufmann

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.