TITLE II – General Relief

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SERVICEMEMBERS CIVIL RELIEF ACT (“SCRA”)

SUBCHAPTER II—GENERAL RELIEF

§ 3931. Protection of servicemembers against default judgments

(a) Applicability of section

This section applies to any civil action or proceeding, including any child custody proceeding, in which the defendant does not make an appearance.

(b) Affidavit requirement

(1) Plaintiff to file affidavit

In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit—

(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or

(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.

(2) Appointment of attorney to represent defendant in military service

If in an action covered by this section it appears that the defendant is in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a servicemember cannot locate the servicemember, actions by the attorney in the case shall not waive any defense of the servicemember or otherwise bind the servicemember.

(3) Defendant’s military status not ascertained by affidavit

If based upon the affidavits filed in such an action, the court is unable to determine whether the defendant is in military service, the court, before entering judgment, may require the plaintiff to file a bond in an amount approved by the court. If the defendant is later found to be in military service, the bond shall be available to indemnify the defendant against any loss or damage the defendant may suffer by reason of any judgment for the plaintiff against the defendant, should the judgment be set aside in whole or in part. The bond shall remain in effect until expiration of the time for appeal and setting aside of a judgment under applicable Federal or State law or regulation or under any applicable ordinance of a political subdivision of a State. The court may issue such orders or enter such judgments as the court determines necessary to protect the rights of the defendant under this chapter.

(4) Satisfaction of requirement for affidavit

The requirement for an affidavit under paragraph (1) may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury.

(c) Penalty for making or using false affidavit

A person who makes or uses an affidavit permitted under subsection (b) (or a statement, declaration, verification, or certificate as authorized under subsection (b)(4)) knowing it to be false, shall be fined as provided in title 18 or imprisoned for not more than one year, or both.

(d) Stay of proceedings

In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection 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 a 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.

(e) Inapplicability of section 3932 procedures

A stay of proceedings under subsection (d) shall not be controlled by procedures or requirements under section 3932 of this title.

(f) Section 3932 protection

If a servicemember who is a defendant in an action covered by this section receives actual notice of the action, the servicemember may request a stay of proceeding under section 3932 of this title.

(g) Vacation or setting aside of default judgments

(1) Authority for court to vacate or set aside judgment

If a default judgment is entered in an action covered by this section against a servicemember during the servicemember’s period of military service (or within 60 days after termination of or release from such military 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—

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

(B) the servicemember has a meritorious or legal defense to the action or some part of it.

(2) Time for filing application

An application under this subsection must be filed not later than 90 days after the date of the termination of or release from military service.

(h) Protection of bona fide purchaser

If a court vacates, sets aside, or reverses a default judgment against a servicemember and the vacating, setting aside, or reversing is because of a provision of this chapter, that action shall not impair a right or title acquired by a bona fide purchaser for value under the default judgment.

(Oct. 17, 1940, ch. 888, title II, §201, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2840; amended Pub. L. 110–181, div. A, title V, §584(a), Jan. 28, 2008, 122 Stat. 128.)

Codification

Section was formerly classified to section 521 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 201 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to stay of proceedings where military service affects conduct thereof, prior to the general amendment of this Act by Pub. L. 108–189. See section 3932 of this title.

Provisions similar to this section were contained in section 200 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1180Pub. L. 86–721, §§1, 2, Sept. 8, 1960, 74 Stat. 820, prior to the general amendment of this Act by Pub. L. 108–189.

Amendments

2008—Subsec. (a). Pub. L. 110–181 inserted “, including any child custody proceeding,” after “proceeding”.

§ 3932. Stay of proceedings when servicemember has notice

(a) Applicability of section

This section applies to any civil action or proceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application under this section—

(1) is in military service or is within 90 days after termination of or release from military service; and

(2) has received notice of the action or proceeding.

(b) Stay of proceedings

(1) Authority for stay

At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met.

(2) Conditions for stay

An application for a stay under paragraph (1) shall include the following:

(A) 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.

(B) 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.

(c) Application not a waiver of defenses

An application for a stay under this section 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).

(d) Additional stay

(1) Application

A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on continuing material affect of military duty on the servicemember’s ability to appear. Such an application may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action. The same information required under subsection (b)(2) shall be included in an application under this subsection.

(2) Appointment of counsel when additional stay refused

If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding.

(e) Coordination with section 3931

A servicemember who applies for a stay under this section and is unsuccessful may not seek the protections afforded by section 3931 of this title.

(f) Inapplicability to section 3951

The protections of this section do not apply to section 3951 of this title.

(Oct. 17, 1940, ch. 888, title II, §202, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2842; amended Pub. L. 108–454, title VII, §703, Dec. 10, 2004, 118 Stat. 3624Pub. L. 110–181, div. A, title V, §584(b), Jan. 28, 2008, 122 Stat. 128.)

Codification

Section was formerly classified to section 522 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 202 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to fines and penalties on contracts, prior to the general amendment of this Act by Pub. L. 108–189. See section 3933 of this title.

Amendments

2008—Subsec. (a). Pub. L. 110–181 inserted “, including any child custody proceeding,” after “civil action or proceeding” in introductory provisions.

2004—Subsec. (a). Pub. L. 108–454 inserted “plaintiff or” before “defendant” in introductory provisions.

Stay of Judicial Proceedings

Pub. L. 102–12, §6, Mar. 18, 1991, 105 Stat. 37, provided that:

“(a) Stay of Action or Proceeding.—In any judicial action or proceeding (other than a criminal proceeding) in which a member of the Armed Forces described in subsection (b) is involved (either as plaintiff or defendant), the court shall, upon application by such member (or some other person on the member’s behalf) at any stage before final judgment is entered, stay the action or proceeding until a date after June 30, 1991.

“(b) Members Covered.—A member of the Armed Forces is covered by subsection (a) if at the time of application for the stay of a judicial action or proceeding the member—

“(1) is on active duty; and

“(2) is serving outside the State in which the court having jurisdiction over the action or proceeding is located.

“(c) Definition.—For purposes of this section, the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam.”

§ 3933. Fines and penalties under contracts
(a) Prohibition of penalties

When an action for compliance with the terms of a contract is stayed pursuant to this chapter, a penalty shall not accrue for failure to comply with the terms of the contract during the period of the stay.

(b) Reduction or waiver of fines or penalties

If a servicemember fails to perform an obligation arising under a contract and a penalty is incurred arising from that nonperformance, a court may reduce or waive the fine or penalty if—

(1) the servicemember was in military service at the time the fine or penalty was incurred; and

(2) the ability of the servicemember to perform the obligation was materially affected by such military service.

(Oct. 17, 1940, ch. 888, title II, §203, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2843.)

Codification

Section was formerly classified to section 523 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 203 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to stay or vacation of execution of judgments and attachments, prior to the general amendment of this Act by Pub. L. 108–189. See section 3934 of this title.

§ 3934. Stay or vacation of execution of judgments, attachments, and garnishments

(a) Court action upon material affect determination

If a servicemember, in the opinion of the court, is materially affected by reason of military service in complying with a court judgment or order, the court may on its own motion and shall on application by the servicemember—

(1) stay the execution of any judgment or order entered against the servicemember; and

(2) vacate or stay an attachment or garnishment of property, money, or debts in the possession of the servicemember or a third party, whether before or after judgment.

(b) Applicability

This section applies to an action or proceeding commenced in a court against a servicemember before or during the period of the servicemember’s military service or within 90 days after such service terminates.

(Oct. 17, 1940, ch. 888, title II, §204, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2843.)

Codification

Section was formerly classified to section 524 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 204 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to duration and term of stays and codefendants not in service, prior to the general amendment of this Act by Pub. L. 108–189. See section 3935 of this title.

§ 3935. Duration and term of stays; codefendants not in service
(a) Period of stay

A stay of an action, proceeding, attachment, or execution made pursuant to the provisions of this chapter by a court may be ordered for the period of military service and 90 days thereafter, or for any part of that period. The court may set the terms and amounts for such installment payments as is considered reasonable by the court.

(b) Codefendants

If the servicemember is a codefendant with others who are not in military service and who are not entitled to the relief and protections provided under this chapter, the plaintiff may proceed against those other defendants with the approval of the court.

(c) Inapplicability of section

This section does not apply to sections 3932 and 4021 of this title.

(Oct. 17, 1940, ch. 888, title II, §205, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2844.)

Codification

Section was formerly classified to section 525 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 205 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181Oct. 6, 1942, ch. 581, §5, 56 Stat. 770Pub. L. 102–12, §9(6), Mar. 18, 1991, 105 Stat. 39, related to statutes of limitations as affected by period of service, prior to the general amendment of this Act by Pub. L. 108–189. See section 3936 of this title.

§ 3936. Statute of limitations

(a) Tolling of statutes of limitation during military service

The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember’s heirs, executors, administrators, or assigns.

(b) Redemption of real property

A period of military service may not be included in computing any period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax, or assessment.

(c) Inapplicability to internal revenue laws

This section does not apply to any period of limitation prescribed by or under the internal revenue laws of the United States.

(Oct. 17, 1940, ch. 888, title II, §206, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2844.)

Codification

Section was formerly classified to section 526 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 206 of act Oct. 17, 1940, ch. 888, art. II, as added Oct. 6, 1942, ch. 581, §6, 56 Stat. 771; amended Pub. L. 102–12, §9(7), Mar. 18, 1991, 105 Stat. 39, related to maximum rate of interest, prior to the general amendment of this Act by Pub. L. 108–189. See section 3937 of this title.

§ 3937. Maximum rate of interest on debts incurred before military service
(a) Interest rate limitation

(1) Limitation to 6 percent

An obligation or liability bearing interest at a rate in excess of 6 percent per year that is incurred by a servicemember, or the servicemember and the servicemember’s spouse jointly, before the servicemember enters military service shall not bear interest at a rate in excess of 6 percent—

(A) during the period of military service and one year thereafter, in the case of an obligation or liability consisting of a mortgage, trust deed, or other security in the nature of a mortgage; or

(B) during the period of military service, in the case of any other obligation or liability.

(2) Forgiveness of interest in excess of 6 percent

Interest at a rate in excess of 6 percent per year that would otherwise be incurred but for the prohibition in paragraph (1) is forgiven.

(3) Prevention of acceleration of principal

The amount of any periodic payment due from a servicemember under the terms of the instrument that created an obligation or liability covered by this section shall be reduced by the amount of the interest forgiven under paragraph (2) that is allocable to the period for which such payment is made.

(b) Implementation of limitation

(1) Written notice to creditor

In order for an obligation or liability of a servicemember to be subject to the interest rate limitation in subsection (a), the servicemember shall provide to the creditor written notice and a copy of the military orders calling the servicemember to military service and any orders further extending military service, not later than 180 days after the date of the servicemember’s termination or release from military service.

(2) Limitation effective as of date of order to active duty

Upon receipt of written notice and a copy of orders calling a servicemember to military service, the creditor shall treat the debt in accordance with subsection (a), effective as of the date on which the servicemember is called to military service.

(c) Creditor protection

A court may grant a creditor relief from the limitations of this section if, in the opinion of the court, the ability of the servicemember to pay interest upon the obligation or liability at a rate in excess of 6 percent per year is not materially affected by reason of the servicemember’s military service.

(d) Definitions

In this section:

(1) Interest

The term “interest” includes service charges, renewal charges, fees, or any other charges (except bona fide insurance) with respect to an obligation or liability.

(2) Obligation or liability

The term “obligation or liability” includes an obligation or liability consisting of a mortgage, trust deed, or other security in the nature of a mortgage.

(e) Penalty

Whoever knowingly violates subsection (a) shall be fined as provided in title 18, imprisoned for not more than one year, or both.

(Oct. 17, 1940, ch. 888, title II, §207, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2844; amended Pub. L. 110–289, div. B, title II, §2203(b), July 30, 2008, 122 Stat. 2849Pub. L. 110–389, title VIII, §807, Oct. 10, 2008, 122 Stat. 4189Pub. L. 111–275, title III, §303(b)(1), Oct. 13, 2010, 124 Stat. 2877.)

Codification

Section was formerly classified to section 527 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

Prior Provisions

A prior section 207 of act Oct. 17, 1940, ch. 888, art. II, as added Oct. 21, 1942, ch. 619, title V, §507(b)(2)(B), 56 Stat. 964, related to limitations prescribed by internal revenue laws as affected by period of service, prior to the general amendment of this Act by Pub. L. 108–189. See section 3936 of this title.

Amendments

2010—Subsec. (f). Pub. L. 111–275 struck out subsec. (f). Text read as follows: “The penalties provided under subsection (e) are in addition to and do not preclude any other remedy available under law to a person claiming relief under this section, including any award for consequential or punitive damages.”

2008—Subsec. (a)(1). Pub. L. 110–289, §2203(b)(1), substituted “in excess of 6 percent—” for “in excess of 6 percent per year during the period of military service.” and added subpars. (A) and (B).

Subsec. (d). Pub. L. 110–289, §2203(b)(2), added subsec. (d) and struck out former subsec. (d). Prior to amendment, text read as follows: “As used in this section, the term ‘interest’ includes service charges, renewal charges, fees, or any other charges (except bona fide insurance) with respect to an obligation or liability.”

Subsecs. (e), (f). Pub. L. 110–389 added subsecs. (e) and (f).

§ 3938. Child custody protection
(a) Duration of temporary custody order based on certain deployments

If a court renders a temporary order for custodial responsibility for a child based solely on a deployment or anticipated deployment of a parent who is a servicemember, the court shall require that the temporary order shall expire not later than the period justified by the deployment of the servicemember.

(b) Limitation on consideration of member’s deployment in determination of child’s best interest

If a motion or a petition is filed seeking a permanent order to modify the custody of the child of a servicemember, no court may consider the absence of the servicemember by reason of deployment, or the possibility of deployment, as the sole factor in determining the best interest of the child.

(c) No Federal jurisdiction or right of action or removal

Nothing in this section shall create a Federal right of action or otherwise give rise to Federal jurisdiction or create a right of removal.

(d) Preemption

In any case where State law applicable to a child custody proceeding involving a temporary order as contemplated in this section provides a higher standard of protection to the rights of the parent who is a deploying servicemember than the rights provided under this section with respect to such temporary order, the appropriate court shall apply the higher State standard.

(e) Deployment defined

In this section, the term “deployment” means the movement or mobilization of a servicemember to a location for a period of longer than 60 days and not longer than 540 days pursuant to temporary or permanent official orders—

(1) that are designated as unaccompanied;

(2) for which dependent travel is not authorized; or

(3) that otherwise do not permit the movement of family members to that location.

(Oct. 17, 1940, ch. 888, title II, §208, as added Pub. L. 113–291, div. A, title V, §566(a), Dec. 19, 2014, 128 Stat. 3384.)

Codification

Section was formerly classified to section 528 of the former Appendix to this title prior to editorial reclassification and renumbering as this section.

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