17.8 Federal Statutes

• Library: Real Estate Practice Deskbook (2019 Ed.)

D. (§17.8) Federal Statutes

The SCRA, 50 U.S.C. §§ 3901–4043, allows military members to suspend or postpone some civil obligations so that they can devote full attention to military duties.

The SCRA specifically protects persons who mortgaged their property before entering the United States armed services. No foreclosure against such a protected person can be undertaken without sanction of court. Knowing violation of the statute is a crime punishable by a fine in accordance with Title 18 of the United States Code and up to one year in jail. 50 U.S.C. § 3953. Therefore, counsel should be particularly inquisitive if the address of a mortgagor indicates that the person may be in military service.

Servicemembers are protected against foreclosures of mortgages as long as the following facts are established:

1. The relief is sought on an obligation secured by a mortgage, deed of trust, or other security in the nature of a mortgage on either real or personal property.

2. The obligation originated before entry on active duty.

3. The property was owned by the servicemember or family member before entry on active duty.

4. The property is still owned by the servicemember or family member at the time relief is sought.

5. The ability to meet the financial obligation is materially affected by the servicemember's active duty obligation.

It is prudent to obtain from the mortgagee an affidavit to the effect that appropriate inquiry has indicated:

· that the mortgagor is not a member of the armed forces; or

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