Chapter 3 - § 3.4 • MILITARY ATTORNEY

• Jurisdiction: Colorado

§ 3.4 • MILITARY ATTORNEY

50 App. U.S.C. § 521(b)(2) prohibits a court from entering a default judgment against a defendant who is shown to be in the military service unless the court first appoints an attorney to represent the servicemember. The plain language of the statute only requires the appointment of a military attorney when the defaulting defendant is actually in the military. The statute does not require such an appointment if the military status of a defaulting defendant is unknown. The procedure required by the statute in that event is for the court to determine whether the plaintiff seeking a default judgment should post a bond.¹⁸¹ Further, subsection (b)(2) states that the actions of an attorney appointed to represent a servicemember whom the attorney cannot locate will not waive any rights of the servicemember or otherwise bind him or her. Therefore, it seems that it is futile to appoint a military attorney to represent "unknown parties" on the off chance that someone falling into this category is in the military service at the time of the lawsuit. By definition, the military attorney will not be able to contact his or her client(s) and, therefore, if a servicemember later appears that both qualifies as an unknown party and can take advantage of the federal statute, the military attorney's actions or inaction will not affect the servicemember's rights. On May 8, 2010, the Title Standards Committee of the Colorado Bar Association promulgated Title Standard 15.3.1, "Attorney for Unknown Parties," which states that title is not unmarketable simply because a quiet title decree was obtained without the appointment of a military attorney where "unknown parties" were named, served by publication, and defaulted.

On the other hand, if a plaintiff moving for a default judgment has determined that a named defendant is in the military service, 50 App. U.S.C. § 521(b)(2) requires the appointment of a military attorney who is then charged with exercising due diligence in an attempt to contact the servicemember.¹⁸²

The internet is a place to start in the search to verify whether someone is in the military service. A website maintained by the United States Defense Department that has some useful information and links is http://kb.defense.gov/PublicQueries. Type "locate" in the search box. Another website that could be helpful is https://www.dmdc.osd.mil/appj/dwp/index.jsp. This site is maintained by the Defense Manpower Data Center and allows searching for...