Servicemembers Civil Relief Act (SCRA)
Since the tragic events of September 11, 2002, our military has swelled and strained to meet the demands of prosecuting the “War on Terrorism.” The net effect of the War on Terrorism has been prolonged and repeated absences of both active duty personnel as well as National Guard and Reserve personnel. The burdens associated with such high “ops tempo” (military speak for the tempo of operations) have been many fold and manifest themselves throughout the personal, professional, and financial lives of the military members who deploy in defense of our great nation. Missed birthdays, holidays, and even funerals are common casualties suffered by deployed and active duty military personnel. Although it is not possible to delay these events, our nation has made the deliberate choice to save the due process rights of active duty military members from being yet another casualty of military service through the enactment of the Servicemembers Civil Relief Act (SCRA).
This article is designed to answer some of the common questions and procedural requirements associated with SCRA so a more just and informed application of the Act can be applied in cases involving military members.
OVERVIEW OF SCRA
The Servicemembers Civil Relief Act (SCRA) is codified at 50 U.S.C. app § 501, et seq. SCRA is a broad statute that was passed by Congress to protect the due process rights of military members involved in civil disputes by establishing procedural protections that must be applied if a military member is a party to a lawsuit. SCRA applies to civil and administrative proceedings and must be followed by every court or administrative agency of the United States or of any state (including any commonwealth, territory or possession of the United States and the District of Columbia). SCRA provides military members with several substantive rights such as a 6% cap on interest rates and the ability to terminate lease agreements if relocated due to military orders, as well as, procedure protections such as provisions tolling the statute of limitations, staying civil proceedings and vacating default judgments.
GENERAL SCRA CONCEPTS
- Who may avail themselves of SCRA?
Generally, SCRA uses the term “servicemembers” to describe the class of people who may avail themselves of its protection; however, the Act refers to different statutes to provide the full scope of who is included within the term “servicemember.” A comprehensive review of these sections reveals that the term refers to members of:
- the active duty Army, Navy, Air Force, Marine Corps or Coast Guard;
- the National Guard who are activated to federal active duty status under 32 U.S.C. § 502(f) for a period of 30 or more consecutive days;
- the reserve component of a military branch while serving on active duty orders;
- the commissioned corps of the National Oceanic & Atmospheric Administration;
- the commissioned corps of the Public Health Service.
SCRA also provides certain protections for dependents of “servicemembers” so this term is helpful to know as well. A person is a “dependent” if he or she is:
- a servicemember’s spouse;
- a servicemember’s child (as defined in 38 U.S.C § 101(4)); or
- an individual for whom the servicemember provided more than one-half of the individual’s support for 180 days immediately preceding an application for relief under SCRA.2
- When does SCRA apply?
Generally, a servicemember is entitled to SCRA’s protection no later than when he or she enters active military service and terminates after he or she is released from active military service. Notwithstanding this general framework, it is important to note that some of the rights and privileges under the Act may extend up to 90 days after a servicemember’s release from military service.
- Can SCRA be waived?
Yes, SCRA protections can be waived, but such waivers are only effective if they are in 12 point written font and executed as an instrument separate from the obligation or liability to which such waiver applies. Some courts have held, however, that a waiver in a proceeding may not apply in subsequent litigation to enforce or interpret a settlement or order related to the earlier proceeding. The waiver must be foreseeable, voluntary and intentional.
It should also be noted that a servicemember may lose SCRA’s protection if he or she is “unlawfully absent” from military duty. Examples of what justifies an unlawful absence from duty would include: being absent without leave (AWOL) or rendering one’s self unable to perform military duty due to a self-inflicted injury.
- What are SCRA’s procedural protections?
A major underpinning of SCRA is the belief that military service often prevents a servicemember from being physically or mentally available to protect or assert his or her rights in a court of law. As a result, SCRA sets up a framework to protect the servicemember’s legal rights until he or she is capable of playing an active role in the case on similar terms to a nonmilitary citizen. The major procedural protections provided to servicemembers under SCRA are:
- Protection from Default Judgments
- Stay of Judicial Proceedings
- Stay or Vacation of Execution of Judgments, Attachments
- Tolling of Statute of Limitations
Each of these procedural protections is discussed in detail below, but it must be pointed out upfront that, with the exception of the tolling provisions, the procedural safeguards afforded by SCRA require a showing that the servicemember’s participation in the legal proceeding was “materially affected” by his or her military duty.
- What constitutes a “material affect” on a servicemember’s ability to participate?
The trial court has broad discretion to determine what constitutes a “material affect” in each case. A mere showing that a defendant is in the military service is not generally viewed as sufficient to prove a servicemember’s duty has a material effect on his or her ability to participate in the legal proceeding.
SPECIFIC PROCEDURAL PROTECTIONS
The following sections are intended to provide a straight-forward analysis of the procedural protections afforded servicemembers under SCRA and the manner in which they should be applied in each case. To help understand SCRA’s statutory scheme, it is helpful to understand that the Act is born from a sense that servicemembers may not be afforded the full range of due process rights as a result of military obligations that prevent them from appearing in court. Indeed, preventing and delaying proceedings until a servicemember can appear and give full time and attention to a legal matter is the primary purpose of SCRA’s procedural protections.
I. Protection from Default Judgments (50 U.S.C. app. § 521)
SCRA provides ridged rules concerning a court’s ability to enter a default judgment. The rules apply in every instance where a defendant fails to make an appearance and are designed to determine if the defendant’s failure to appear is due to military service. The first rule is that a court must obtain an affidavit from the plaintiff that contains facts upon which it can determine the defendant’s military status (or lack thereof). Based on the facts contained in the affidavit, the court must take one of three courses of action:
- If the affidavit proves the defendant IS NOT in the military service…
- the court may enter a judgment of default; however, if the affidavit later proves false, then the servicemember may seek to have the default judgment vacated and the plaintiff may be subject to penalties for filing a false affidavit.8
- If the affidavit proves the defendant IS in the military service…
- then the court may not enter a judgment of default unless it appoints an attorney to represent the servicemember’s interests.
- the court must stay the case for no less than 90 days upon application of the appointed counsel if:
- it finds there may be a defense to the case and the defense cannot be presented without the presence of the servicemember
- after due diligence, the appointed counsel cannot contact the servicemember or otherwise cannot determine if a meritorious defense exists.
- the servicemember may move to vacate the order of default if he or she can prove his or her defense was “materially affected” by military service and they have a meritorious defense.
- If the affidavit cannot prove whether the defendant is in the military service…
- the court may enter a judgment of default, but such judgment is voidable by the servicemember at any time during his military service or within 90 days of his or her release from military service.
- the court may require the plaintiff to post a bond before entering a default judgment against a defendant whose military status is unknown, but such course of action is not mandatory.
II. Vacating Judgment of Default (50 U.S.C. app. § 521)
SCRA enforces the affidavit requirement and protects servicemembers by making any judgment entered by default against a servicemember voidable. The specific details of the servicemember’s right to request a court to vacate a default judgment are as follows:
- the servicemember must not have made an appearance in the case;
- the request must be made while the servicemember is in military service or within 90 days of being released from military service;
- the default judgment must have been entered while the servicemember was in military service or within 60 days of release from military service;
- the servicemember must show that:
- he or she was “materially affected” by reason of military service in making a defense to the action;
- the servicemember has a meritorious or legal defense to the action or some part of it.
SCRA requires the default judgment to be vacated if the court finds each of these two elements; therefore, it is prudent for a court to address these two issues in any order denying a servicemember’s application to vacate a default judgment.
III. Stay of Judicial Proceedings (50 U.S.C. app. § 522)
The default provisions protect against instances where a servicemember does not make an appearance in a case but SCRA also protects a servicemember who makes an appearance in a case but later cannot participate because of military duty. In these instances, the servicemember may request a stay of the case. The servicemember’s right to request a stay may be made at any stage before final judgment. If the court finds the servicemember’s ability to participate in the case was materially affected by his or her military service, then it must grant a stay of not less than 90 days. To request a stay, the servicemember must furnish the court with the following:
- A letter from the servicemember setting forth:
- facts stating the manner in which current military duty requirements materially affect his or her ability to appear, and
- a date when he or she will be available to appear
- A letter from the servicemember’s commanding officer setting forth:
- that the member’s current military duty prevents appearance, and
- that military leave is not authorized.
Additional stay: If the servicemember is prevented from participating in the case after the initial stay, then the servicemember can apply for an additional stay. In such event, the servicemember is required to submit new letters showing a continuing material affect of military duty on his or her ability to appear. **If the additional stay is not granted, then counsel must be appointed to represent the servicemember in the action or proceeding.
Note I: The stay applies to individuals secondarily liable (surety, guarantor, endorser, maker, comaker, etc) for the servicemember’s obligation, but it does not apply to co-defendants to the extent that they have independent liability.
Note II: A court may not enforce a bail bond during any period of service of the principle when military service prevents the surety from obtaining attendance of the principle.10
IV. Stay or Vacation of Execution of Judgments, Attachments (50 U.S.C. app § 524)
Similar to the other procedural protections, SCRA protects servicemembers from being harmed by virtue of their military service if such service materially affects his or her ability to comply with a judgment. SCRA mandates that if a court finds a servicemember’s compliance with a judgment is materially affected by reason of military service, the court may on its own, or must if asked by the servicemember:
- Stay execution; and
- Vacate or stay an attachment or garnishment of property.
Note: This section applies to any judgment entered before, during or within 90 days after a servicemember is released from military service.
V. Tolling of Statute of Limitations (50 U.S.C. app § 526)
Finally, SCRA not only addresses concerns regarding servicemembers inability to appear and defend on-going cases, but it also relieves servicemembers of the obligation to commence legal proceedings within the typical statute of limitations. Specifically, SCRA tolls the statute of limitations for any period during which a servicemember is in the military service. This tolling provision applies regardless of when the cause of action accrued and can be asserted by career servicemembers. Notwithstanding the limitless nature of this tolling provision, the United States Supreme Court has stated in dicta that the doctrine of laches may still apply if there is inexcusable delay in filing suit and prejudice resulted to the opposing party. Two important issues to point out with respect to SCRA’s tolling provisions are:
- All periods of military service are excluded in computing any period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax or assessment.
- SCRA does not toll any statute of limitations with respect to internal revenue laws.
FREQUENTLY ASKED QUESTIONS
- Who pays for the appointed attorney?
SCRA does not address this issue and other courts have come to differing opinions. Since most attorneys want to be paid before commencing work as appointed counsel and since SCRA is premised on counsel being appointed for absent or unavailable defendants, it stands to reason that the plaintiff or the court may have to bear the expense of appointed counsel.
- What is the appointed counsel role in the case?
- Contact the defendant and assure that he or she had notice of the lawsuit;
- Advise defendant of the protections of SCRA;
- Advise defendant of the possibility of entry of default judgment and of the consequences of such;
- Ascertain whether defendant’s ability to appear and defend his or her legal interests is affected in any way by defendant’s military status;
- If the defendant wishes, move for a stay of the proceedings to enable defendant to obtain counsel or prepare a defense on the merits of the case.
- Is the servicemember bound by the decisions or actions of appointed counsel?
No. SCRA expressly provides: “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.”
- Can the property rights of a bona fide purchaser for value be impaired by the application of SCRA?
No, SCRA expressly protects bona fide purchasers for value.
- Does a letter submitted by a servicemember seeking a stay of a judicial proceeding constitute an appearance that would terminate his rights under the default judgment proceedings?
No, SCRA expressly states that a written letter seeking a stay of judicial proceedings does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defenses.