Chapter 12 - § 12.10 • MILITARY ATTORNEY

• Jurisdiction: Colorado

§ 12.10 • MILITARY ATTORNEY

The Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. §§ 3901, et seq.), as amended in 2003 and renamed the Servicemembers Civil Relief Act (Pub. L. No. 108-189, 117 Stat. 2835 (2003)), requires that in any court proceeding before entry of default for non-appearance of a defendant, including unknown parties, the plaintiff must file an affidavit with the court stating whether the non-appearing defendant is in military service. 50 U.S.C. § 3931(b)(1). If the plaintiff's affidavit states that the defendant is not in military service, the court can enter the default. But, if the affidavit states that the plaintiff cannot determine if the defendant is in military service, which is normally the case in a QTA with unknown persons as defendants against whom a default must be entered, the possibility remains that a defendant may be in military service. The Servicemembers Civil Relief Act provides that a lawyer must be appointed to represent a defendant in military service before the court can enter a judgment against such defendant. 50 U.S.C. § 3931(b)(2).

Although you may see no risk in swearing that corporate or partnership defendants are not in military service, nor are those individual defendants whose names appear in the records more than, say, 75 years ago, you can never be sure about the "unknown persons." For this reason, if merchantable title is dependent upon a valid decree entered in a QTA, most practitioners have routinely suggested that an attorney be appointed by the court and charged with the responsibility of providing legal representation to any defendants who may be in military service and who may or may not claim an interest in the property. Before a default judgment can be entered under C.R.C.P. 55, C.R.C.P. 121, § 1-14(1)(c) requires the moving party to submit an affidavit that the defendant in default is not in military service. When the defaulting defendant is in military service, or such defendant's status cannot be shown, § 1-14(3) instructs the court to comply with the Servicemembers Civil Relief Act of 2003 in protecting the interest of the defendant, "including the appointment of an attorney when necessary."

That routine practice may, however, change with the adoption, on May 8, 2010, of Title Standard 15.3.1, which reads as follows:

15.3 Appointment of Attorney
15.3.1 Attorney for Unknown Parties
Problem: The record reveals a quiet title decree indicating that "unknown parties" were named as

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