Chapter 3 - § 3.3 • SERVICEMEMBERS CIVIL RELIEF ACT

• Jurisdiction: Colorado

§ 3.3 • SERVICEMEMBERS CIVIL RELIEF ACT

The Servicemembers Civil Relief Act¹⁶⁵ (formally known as the Soldiers' and Sailors' Relief Act of 1940) addresses a wide range of issues, including servicemembers' ownership of real estate and personal property, as well as life insurance, taxes, entry on public lands, health insurance issues, and other matters. The area of most concern for quiet title practitioners is the Act's provisions dealing with default judgments.

50 App. U.S.C. § 521 applies to any civil action in which the defendant does not make an appearance.¹⁶⁶ In that event, the act requires the plaintiff to file an affidavit of military service when attempting to obtain a default judgment.¹⁶⁷ The affidavit must state whether the defendant is in the military service and show facts supporting the conclusion¹⁶⁸ or, if the plaintiff cannot determine whether the defendant is in the military, stating as much.¹⁶⁹ If the defendant is in the military, the court cannot enter a judgment against that defendant until after the court appoints an attorney to represent the defendant.¹⁷⁰ If the appointed attorney cannot locate the servicemember, any actions by the attorney will not waive any defense the servicemember has or otherwise bind the servicemember.¹⁷¹

If the court cannot determine whether the defendant in question is in the military, the court may still enter judgment against the defendant, but may require the plaintiff to post a bond to protect the interests of the defendant.¹⁷² If it turns out the defendant was in the military at the time of the default, the bond will be available to indemnify the servicemember against loss or damage caused by the default judgment.¹⁷³ The bond will remain in effect until the time for appeal or the setting aside of the default judgment has expired.¹⁷⁴

50 App. U.S.C. § 521(c) imposes a fine and the possibility of imprisonment for not more than one year for filing a false affidavit. If it appears that the defendant is in the military, the act directs the court to grant a stay of at least 90 days if the court determines the defendant has a defense that cannot be presented without the presence of the servicemember, or if the servicemember's counsel cannot locate the servicemember after a diligent attempt to do so.¹⁷⁵

Subsection (g) of 50 App. U.S.C. § 521 allows a servicemember to request that the court set aside a default judgment under certain circumstances, provided that the motion is made within 90 days of the...