General

It happens every day, all over the country. A Plaintiff files suit. The Defendant doesn’t show up and then the Clerk throws a road block at the Plaintiff. No default judgment may be entered until the Plaintiff produces an affidavit. The Clerk explains that a federal statute, the Servicemembers Civil Relief Act (“SCRA”) is designed to protect active duty servicemembers and prohibits the Clerk from entering judgment without the affidavit. The affidavit basically says that a diligent search has been conducted and that the Defendant is not on active military duty or otherwise protected by the Act. You need a military affidavit.

Under the Servicemembers Civil Relief Act (“SCRA”) a condition precedent to obtaining a default judgment against a servicemember 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.

The Servicemembers Civil Relief Act (“SCRA” or the “Act”) provides protections to servicemembers, but, may also provide extensions to the servicemember’s family. Servicemember protections available to family members are not automatic, however.

The SCRA does makes reference to coverage for dependents and people who co-sign obligations. This protection does not spring into effect unless a court order is sought and obtained. The court will first determine the status of the servicemember and will generally require a military affidavit resulting from an active duty military search, often with a military verification from the United States Department of Defense Manpower Data Center (“DMDC”).

National Guard members and reservists merit close attention when deciding if they are eligible for protections under the Servicemembers Civil Relief Act.

The protections are automatic for active duty personnel in the Army, Marines, Navy, Air Force, Coast Guard, and commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration (NOAA). This also holds true for personnel who are on reserve that have been called up for active military service.

The original version of the Servicemembers Civil Relief Act was enacted in 1940. Since then, Congress has amended it a number of times. But the federal law protecting those on active duty military service is still rife with ambiguity. The language is sometimes broad and open to several interpretations, which is why sophisticated users set up…