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Veterans: Guidelines to the Service Members' Civil Relief Act (SCRA)

Authored By: Legal Aid of North Carolina LSC Funded

Quick Facts

 

 

Purpose:

This is a guideline to use when parties to a lawsuit are on active duty in the armed forces.

 

The Service Members’ Civil Relief Act (50 USC § 501, et seq.)

In 1940, Congress enacted the Soldiers and Sailors Civil Relief Act (SSCRA). Its purpose was to protect those called to serve in the armed forces.

In 2003, the SSCRA was amended by the Service Members’ Civil Relief Act (SCRA). Different from SSCRA it provides protections to those on active duty, reservists and members of the National Guard when activated.

 

FAQS

(Frequently Asked Questions)

 

Who is covered?

  • Members of the Army, Navy, Air Force and Marine Corps on active duty.

  • Members of the National Guard called to active duty as authorized by the President or Secretary of Defense for over thirty (30) days;

  • Commissioned members of the Public Health Service and National Oceanographic Atmospheric Administration.

 

When does SM’s coverage under SCRA begin?

  • A Service Member (SM) is covered from time of receipt of orders to report.

 

What tribunals/proceeding?

  • Any court or administrative agency of the United States, state or a political subdivision.

 

How is the court alerted to the fact that a party is in the military?

  • Any person can alert the court even if the SM has not made an appearance. It is the duty of the court to determine whether that party is in the military.

 

How can any one show that a party is in the military?

  • The Department of Defense (DOD) must issue a statement of military service.

Defense Manpower Data Center
Attention: Military Verification
1600 Wilson Blvd., Suite 400
Arlington, VA 22209-2593
(Telephone Number: 703-696-6762 or 5790
Fax Number: 703-696-4156)

  • If you have the last name and Social Security Number of the individual, you can obtain a report showing the branch of service and beginning date of active duty service - Click here

  • If the Social Security Number is unavailable, the request can be made with the date of birth by mail.

 

What is the immediate result of a finding that a party is in the military on active duty?

  • First: The court may not enter a default judgment without appointing an attorney for the SM. This has the immediate result of a postponement of the proceeding.

  • Second: The SM’s attorney, or the SM, or the court itself may stay the proceedings for at least ninety (90) days if the court determines that:

    • there may be a defense; or

    • counsel has been unable to contact the SM or determine if a meritorious defense exists.

 

If judgment has already been entered and the court determines that a party was in military service

  • Judgment entered against a SM or within sixty (60) days after the end of service must be reopened if:

    • SM has a meritorious defense;

    • SM has been prejudiced by the judgment;

    • Application is filed within ninety (90) days after end of service.

 

What happens if SM receives notice of an action and makes an application to the court for a stay?

  • Upon application of a SM, the court SHALL stay the proceeding for ninety (90) days.

 

What must be part of a valid application/motion for stay?

  • A statement of how the SM’s current military duties affect the SM’s ability to appear;

  • State a date when SM will be available to appear;

  • A statement from SM’s commanding officer that the SM’s current military duty prevents his appearance; and

  • A statement from commanding officer that military leave is not authorized.

Tip:
Statement does NOT need to be under oath.
Stay can be extended upon application.

 

Is the initial ninety (90) day stay mandatory?

  • Yes.

 

Is any additional stay discretionary?

  • Yes. The court must find that the SM’s ability to present a defense is "materially affected" by reason of his active duty of service. Once the court makes this finding, the SM is entitled to a stay.

 

Once the court makes a finding that the SM’s defense is "materially affected", for how long is the proceeding stayed?

  • Once the court finds that the SM’s defense is "materially affected" by reason of his active duty, the proceeding is stayed for such time as is necessary.

 

If a judgment has been entered, can the execution of a judgment be stayed?

  • Yes. In an action started against a SM during military service or within ninety (90) days after the end of service, the court SHALL stay the execution of any judgment or order against him.

 

  • The court can also vacate or stay any attachment or garnishment of property, money or debts.

 

Is the Statute of Limitations tolled during the period of military service?

  • Yes. Once the period of military service is shown, the period is automatically tolled.

 

What is the effect of the SCRA on leases?

  • The SM can terminate a lease signed before the member entered active duty.

 

What must the SM do to terminate a lease?

  • The SM must give written notice to the landlord with a copy of his military orders.

Tip: Service Member can get a refund of security deposit.

 

Can the Act stop an eviction?

  • Yes. It depends on the amount of rent paid and requires a court order.

 

Does the Act apply to time payments/installment contracts and mortgage foreclosures?

  • Yes. If the SM can show that their ability to meet the financial obligations is materially affected, the court can stay the proceeding, prohibit the vendor/lender from exercising any right or option under the contract, extend period of redemption and extend the maturity date to allow for reduce monthly payments.

 

What is the easiest way to serve a party in military service?

  • If the SM is in a base in the United States:

    • The easiest service is by certified mail, registered, return receipt requested.

    • Documents should be sent to the unit commander and request that documents be given to military member with a form for SM to accept service.

  • If the SM is stationed overseas:

    • Can use registered or certified mail if host nation does not object.

    • When SM is stated overseas, the process is more complicated and may require assistance from an attorney.

 

 


 

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Last Review and Update: Jun 25, 2012