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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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- Chapter 12 Quiet Title Actions
- Chapter 12 - CHAPTER 12 QUIET TITLE ACTIONS
- Chapter 12 - § 12.1 • INTRODUCTION
- Chapter 12 - § 12.2 • GENERAL
- Chapter 12 - § 12.3 • IS A QUIET TITLE ACTION NECESSARY?
- Chapter 12 - § 12.4 • PARTIES
- Chapter 12 - § 12.5 • VENUE AND JURISDICTION
- Chapter 12 - § 12.6 • TITLE INFORMATION
- Chapter 12 - § 12.7 • COMMENCING THE ACTION
- Chapter 12 - § 12.8 • SERVICE OF PROCESS
- Chapter 12 - § 12.9 • DEFENDING THE ACTION
- Chapter 12 - § 12.10 • MILITARY ATTORNEY
- Chapter 12 - § 12.11 • TRIAL
- Chapter 12 - § 12.12 • DECREE
- Chapter 12 - § 12.13 • POST-DECREE
- Chapter 12 - § 12.14 • WHAT ABOUT LOBATO V. TAYLOR?
- Chapter 12 - § 12.15 • QUIET TITLE BIBLIOGRAPHY
- Chapter 12 - EXHIBIT 12A • FICTIONAL TRANSCRIPT
- Chapter 12 - EXHIBIT 12B • SERVICEMEMBERS CIVIL RELIEF ACT (SCRA) CERTIFICATES
- Chapter 12 - CHAPTER 12 FORMS
- Chapter 12 - FORM 12-1 • SUMMONS
- Chapter 12 - FORM 12-2 • COMPLAINT UNDER RULE 105
- Chapter 12 - FORM 12-3 • NOTICE OF COMMENCEMENT OF ACTION (LIS PENDENS)
- Chapter 12 - FORM 12-4 • MOTION FOR PUBLICATION
- Chapter 12 - FORM 12-5 • ORDER FOR PUBLICATION
- Chapter 12 - FORM 12-6 • SUMMONS [BY PUBLICATION]
- Chapter 12 - FORM 12-7 • CERTIFICATE OF MAILING OF COPY OF PROCESS
- Chapter 12 - FORM 12-8 • DISCLAIMER UNDER RULE 105(C), C.R.C.P.
- Chapter 12 - FORM 12-9 • AFFIDAVIT RE: MILITARY SERVICE
- Chapter 12 - FORM 12-10 • MOTION FOR APPOINTMENT OF ATTORNEY AND FOR ORDER FOR ENTRY OF JUDGMENT
- Chapter 12 - FORM 12-11 • ORDER APPOINTING ATTORNEY
- Chapter 12 - FORM 12-12 • ANSWER OF ATTORNEY APPOINTED BY THE COURT
- Chapter 12 - FORM 12-13 • FINAL ORDER AND DEFAULT JUDGMENT
- Chapter 12 - FORM 12-14 • DECREE QUIETING TITLE
- Chapter 12 - FORM 12-15 • CHECKLIST — QUIET TITLE ACTION
- Chapter 12 - FORM 12-16 • CERTIFICATE OF DISMISSAL OF ACTION
- Chapter 12 - FORM 12-17 • STIPULATED MOTION FOR ORDER RELEASING LIS PENDENS
- Chapter 12 - FORM 12-18 • ORDER RELEASING LIS PENDENS
- Chapter 12 - FORM 12-19 • AFFIDAVIT OF SERVICE ON DEFENDANT __________ PURSUANT TO C.R.S. § 7-90-704
- Chapter 12 - FORM 12-20 • COMPLAINT FOR PARTITION OF REAL PROPERTY
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