SUMMARY OF SERVICEMEMBERS CIVIL RELIEF ACT

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A law designed to protect the rights of members of the armed forces, the Servicemembers Civil Relief Act (SCRA) became effective in December of 2003. It was a complete revision of the statute known as “The Soldiers' and Sailors' Civil Relief Act,” or SSCRA. A brief summary of its provisions follows.

Until the passage of the SCRA, the basic protections of the SSCRA for the servicemember (SM) included:

1. Postponement of civil court hearings when military duties materially affected the ability of a SM to prepare for or be present for civil litigation;

2. Reducing the interest rate to 6% on pre‑service loans and obligations;

3. Barring eviction of a SM’s family for nonpayment of rent without a court order for monthly rent of $1,200 or less;

4. Termination of a pre‑service residential lease; and

5. Allowing SMs to maintain their state of residence for tax purposes despite military reassignment to other states.

The SSCRA, enacted in 1940 and updated after the Gulf War in 1991, was in need of major changes, not just a facelift, when Congress created the SCRA in 2003. The SCRA was written to clarify the language of the SSCRA, to incorporate many years of judicial interpretation of the SSCRA and to update the SSCRA to reflect new developments in American life since 1940. Here’s an overview of what the SCRA does.

General Relief Provisions

1. The SCRA expands the application of a SM’s right to stay court hearings to include administrative hearings. Previously only civil courts were included, and this caused problems in cases involving administrative child support determinations as well as other agency determinations which impacted servicemembers. Criminal matters are still excluded. 50 U.S.C. §3911-3912.

2. 50 U.S.C. §3920 defines a “legal representative” of the SM as either “[a]n attorney acting on the behalf of a servicemember” or “[a]n individual possessing a power of attorney.” Under the SCRA a servicemember’s legal representative can take the same actions as a servicemember.

3. The former statute referred to "dependents" and provided several protections that extended to them, but it never defined the term. 50 U.S.C. §3911(4) now contains a definition of the term “dependent.” This includes anyone for whom the SM has provided more than half of his or her support during the 180 days before an application for relief under the SCRA. This is intended to include dependent parents and disabled adult children.

4. There are several provisions regarding the ability of a court or administrative agency to enter an order staying, or delaying, proceedings. This is one of the central points in the SSCRA and now in the SCRA – the granting of a continuance which halts legal proceedings.

5. In a case where the SM has not made an appearance in the proceedings, the SCRA requires a court or administrative agency to grant a stay (or continuance). A stay of at least 90 days will be allowed when the defendant is in military service and --

a. the court or agency decides that there may be a defense to the action, and such defense cannot be presented in the defendant’s absence, or

b. with the exercise of due diligence, counsel has been unable to contact the defendant (or otherwise determine if a meritorious defense exists). 50 U.S.C. §3912(d).

6. The Act contains several specific revisions regarding the taking of a default judgment.

a. To obtain a default judgment, a plaintiff must file an affidavit stating that the defendant is not in the military service.

b. The Act allows the plaintiff to conduct a search of military records at the Defense Manpower Data Center to find out if the defendant is in the military.

c. If a default judgment is granted against a servicemember, he or she may move to reopen the default judgment by taking several steps. First, the SM must show that the judgment was entered during military service or within 30 days after the termination of service. Second, the SM must file a motion asking that the court set aside the default judgment, and this needs to be done during active duty or within 90 days of leaving the service. Third, the SM must show that he has not filed any pleadings or motions in the case, and has not “made an appearance” in court, prior to the default judgment being entered. Finally, the member must indicate that military service had a material effect on his ability to defend the case and that there is a valid defense to the action.

7. In a situation where the military member has notice of the proceeding, a similar mandatory 90‑day stay (minimum) of proceedings applies upon the request of the SM. A stay can be used to suspend the lawsuit completely, or it can apply to hold up some phase of it. According to the SCRA, a stay can be considered and granted by the court during any stage of the proceedings. The court should grant the stay if the request includes:

a. a letter or other communication that:

1. states the manner in which current military duty requirements materially affect the SM's ability to appear, and
2. gives a date when the SM will be available to appear, and

b. a letter or other communication from the SM's commanding officer stating that:

1. the SM's current military duty prevents appearance, and

2. military leave is not authorized for the SM at the time of the communication. 50 U.S.C. §3932.

[Query: How does this provision affect an action for custody by the non-custodial dad when mom, who has custody, gets mobilization orders and takes off for Afghanistan, leaving the parties' child with her mother in Florida? How does this provision affect the custodial dad who suddenly stops receiving child support when his ex-wife is called up to active duty from the Guard or Reserve, leaving behind her “day job” and the monthly wage garnishment for support of their children?]

8. An application for an additional stay may be made at the time of the original request or later. 50 U.S.C. §3932(d)(2). If the court refuses to grant an additional stay, then the court must appoint counsel to represent the SM in the action or proceeding. 50 U.S.C. §3932(d)(2).

[Query: What is the attorney supposed to do – tackle the entire representation of the SM, whom he has never met, who is currently absent from the courtroom and who is likely unavailable for even a phone call or a consultation if he is on some distant shore in harm’s way? And, by the way, who pays for this?]

9. An application for a stay does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense (including a defense as to lack of personal jurisdiction). Previously the recommended practice was to avoid having the military attorney or the SM request a stay out of concern that the court might construe the stay request as a general appearance. 50 U.S.C. §3932(c) eliminates this concern. This new provision makes it clear that a stay request “does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense.”

10. The Act clarifies how to proceed in a case where the other side seeks a default judgment (that is, one in which the SM has been served but has not entered an appearance by filing an answer or otherwise) if the tribunal cannot determine if the defendant is in military service. 50 U.S.C. §3931.

11. The rules about the 6% interest rate cap on pre‑service loans and obligations are clarified by the SCRA. This can include interest rates on credit cards, mortgages, and even some student loans, to name a few.

a. Interest in excess of 6% per year must be forgiven. The absence of such language in the SSCRA had allowed some lenders to argue that interest in excess of 6% was merely deferred. 50 U.S.C. §3937(a)(2).

b. The SM must request this reduction in writing and include a copy of his/her military orders. 50 U.S.C. §3937(b)(1).

c. Once the creditor receives notice, the creditor must grant the relief effective as of the date the servicemember is called to active duty. The creditor must forgive any interest in excess of the six percent with a resulting decrease in the amount of periodic payment that the servicemember is required to make. 50 U.S.C. §3937(b)(2).

d. The creditor may challenge the rate reduction if it can show that the SM’s military service has not materially affected his or her ability to pay. 50 U.S.C. §3937(c).

e. The interest rate cap lasts for the duration of active duty service. The interest rate cap will apply from the first date of active-duty service. The military member must provide written notice to the creditor and a copy of military orders not later than 180 days after the servicemember’s termination or release from military service.

Rent, Installment Contracts, Mortgages, Liens and Leases

1. The SSCRA provided that, absent a court order, a landlord could not evict a servicemember or the dependents of a servicemember from a residential lease when the monthly rent was $1200 or less. 50 U.S.C. §3951(a) modifies the eviction protection section by barring evictions from premises occupied by SMs for which the monthly rent does not exceed $2,400 for the year 2003. The Act also provides a formula to calculate the rent ceiling for future years. Using this formula, the 2016 monthly rent ceiling is $3,451.20. You can easily check this for the current year by doing an internet search using “Publication of Housing Price Inflation Adjustment under United States Code” as the search term. The military member must show that military service materially affects his or her ability to pay rent.

2. A substantial change is found in 50 U.S.C. §3955. Previously the statute allowed a servicemember to terminate a pre-service “dwelling, professional, business, agricultural, or similar” lease executed by or for the servicemember and occupied for those purposes by the servicemember or his dependents. The purpose of this provision was to allow military members who are just entering active duty service to lawfully terminate a lease without repercussions. The Act, however, did not provide help for the SM on active duty who is required to move due to military orders. Section 305 remedies these problems. Under the old SSCRA, a lease covering property used for dwelling, professional, business, agricultural or similar purposes could be terminated by a SM if two conditions were met:

a. The lease/rental agreement was signed before the member entered active duty; and

b. The leased premises have been occupied for the above purposes by the member or his or her dependents.

The Act still applies to leases entered into prior to entry on active duty. It adds a new provision, however, extending coverage to leases entered into by active duty servicemembers who later receive orders for a permanent change of station (PCS) or a deployment for a period of 90 days or more. The member may terminate a lease by providing written notice to the landlord along with a copy of the military orders. The termination of a lease that provides for monthly payment of rent will occur 30 days after the first date on which the next rental payment is due and payable after the landlord receives proper written notice.

3. The Act also adds a new provision allowing the termination of automobile leases (for business or personal use) by SMs and their dependents. Pre‑service automobile leases may be canceled if the SM receives orders to active duty for a period of 180 days or more. Automobile leases entered into while the SM is on active duty may be terminated if he or she receives PCS orders to a location outside the continental United States or deployment orders for a period of 180 days or more.

4. There is also a new section on cell phone agreements. The SM can suspend or terminate a cell phone contract if deployed outside the continental U.S. for at least 90 days or in receipt of PCS orders. Service providers are prohibited from assessing penalty fees or requiring contract extensions as a result of the suspension or termination of the original agreement. The SM is eligible for this protection if he or she signed the cell phone agreement prior to receiving active duty service orders and military service materially affected the ability to pay. To take advantage of this, the SM must provide written notice of suspension/termination along with a copy of the applicable military orders.

Life Insurance

Article IV of the SSCRA permitted a SM to request deferments of certain commercial life insurance premiums for the period of military service and two years thereafter. If the Department of Veterans Affairs approved the request, then the US government guaranteed the payments and the policy continued in effect. The SM had two years after the period of military service to repay all premiums and interest. There was a $10,000 limit for the total amount of life insurance that this program could cover. The SCRA, 50 U.S.C. §3972, increases this total amount to the greater of $250,000 or the maximum limit of Servicemembers Group Life Insurance.

Taxes

The SCRA adds a provision that would prevent states from increasing the tax bracket of a nonmilitary spouse who earned income in the state by adding in the service member's military income for the limited purpose of determining the nonmilitary spouse's tax bracket. This practice has had the effect of increasing the military family's tax burden. 50 U.S.C. §4001(d).

Statutes of Limitations

Statues of limitations are suspended during active duty. This provision applies to the ability of a third party to sue the military member, and also the SM’s ability to initiate legal proceedings against someone else. It also covers any period of time which is limited by law, regulation or order for bringing an action or proceeding in court by or against a SM.

Waiver of Rights

It is possible to waive rights which are granted in the SCRA. This can take place due to the SM’s signing a contract while on active duty which states the particular rights to be waived as well as the specific financial papers to which the waiver applies. A waiver must be set out in a separate document from that which stated the original obligation, and it must be printed in at least 12-point font.

Further Relief and Coverage

1. The new Act adds legal services as a professional service specifically named under the provision that provides for suspension and subsequent reinstatement of existing professional liability (malpractice) insurance coverage for designated professionals serving on active duty. The SSCRA specifically named only health care services for protection in the 1991 amendment. The insurance provider would be responsible for any claims brought as a result of actions prior to the suspension. The carrier would not charge premiums during the period of suspension, and must reinstate the policy upon the request of the professional. Legal services have been covered since 3 May 1999 by Secretary of Defense designations. The SSCRA permitted such a Secretarial designation, but 50 U.S.C. §4023 clarifies this area.

2. The SSCRA applied to members of the National Guard only if they were serving in a Title 10 status. Effective 6 December 2002, the SSCRA protections were extended to members of the National Guard called to active duty for 30 days or more pursuant to a contingency mission specified by the President or the Secretary of Defense. This continues in the SCRA. 50 U.S.C. §3911(2)(A)(ii).

3. Amendments to the Act in 2010 added Title VIII to the SCRA, which includes:

a. Enforcement by the Attorney General authorized (50 U.S.C. §4041)

b. Private cause of action to recover damages and attorneys fees recognized (50 U.S.C. §4042)

c. Preservation of other remedies (including punitive damages) (50 U.S.C. §4043)

Resources on the Internet

Start your internet resource search with a visit to the Servicemember’s Civil Relief Act information center at the public preventive law page of the Army Judge Advocate General’s Corps, found at http://www.jagcnet.army.mil/legal.

“A Judge’s Guide to the Servicemembers Civil Relief Act” is at www.abanet.org/family/military and at www.nclamp.gov > For Attorneys.

[Rev. 1/9/17]

This SILENT PARTNER was prepared by COL Mark E. Sullivan (USA-Ret.). For revisions, comments or corrections, contact him at Sullivan & Tanner, P.A. in Raleigh, N.C. 919-832-8507, or mark.sullivan@ncfamilylaw.com (alternate: 919-306-3015, law.mark.sullivan@gmail.com).