Protecting military families: the new Servicemembers Civil Relief Act.

• Author: Cushing, Peter C.

On December 19, 2003, President Bush signed Pub. L. No. [section] 108-189, making major amendments to the former Soldier's and Sailor's Civil Relief Act (SSCRA, 50 U.S.C. App. [section] 501-594(2000). The new law is called the Servicemembers Civil Relief Act (SCRA) and contains renumbered sections from 101-704. The new legislation is largely based upon a Department of Defense Draft Revision completed in 1991 after the first Gulf War, and updated in 1992 and 2003. According to the Office of the Judge Advocate General, U.S. Army, Legal Assistance Policy Division, the goals of the draft were to make the act easier to read and understand, incorporate into the act many years of judicial interpretation, and to update the act to take into account generally accepted legal practices and new developments in American life. Many of the new sections of the law clarify areas of disagreement among military law experts and make case law interpreting the former SSCRA moot. The new law significantly strengthens the former SSCRA and for the benefit of both the active duty member and his or her dependents.

Summary of Changes to the Old SSCRA

1) The act is expanded to cover any civil or administrative proceeding, [section] 101(5) and (2), but not criminal proceedings;

2) Automatic 90-day stay provision. The new law makes the first 90-day stay mandatory upon application of the servicemember if he or she shows that he or she is on active duty, that military duties materially affect the servicemember's ability to appear and defend, and states a time when he or she can appear ([section] 202);

3) Provision is made to appoint an attorney for the servicemember if at the end of the initial stay another is requested and denied ([section] 202(d));

4) Enhances protection for preservice real estate lease contracts precluding eviction from premises where rent does not exceed $2400 rather than the previous $1200 without compliance with the act ([section] 301); however, allows the servicemember to terminate his or her home lease on 30 days' notice if deployed ([section] 305);

5) Protects preservice real estate and personal property installment contracts by preventing creditors from repossessing the secured property without court order, for nonpayment or breach occurring before or during military service ([section] 302);

6) Allows termination of preservice motor vehicle leases by the member if called to active duty for not less than 180 days; or, if on active duty, is deployed for more than 180 days ([section] 305(b));

7) Prevents sellers of life insurance from decreasing coverage or increasing premiums upon entry onto active service, if the member had the insurance for 180 days before being activated ([section] 401);

8) Provides health insurance cancellation protection requiring reinstatement without penalty upon release from active duty without exclusions or waiting periods ([section] 704).

The SCRA applies primarily to members of the Uniformed Services, which includes the Army, Navy, Coast Guard, and Marine Corps. "Servicemembers" also include commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration. Also covered are members of the National Guard called to active service for a period of more than 30 consecutive days. ([section] 101) Members of the reserve ordered to report to active duty and those inducted are covered. ([section] 106) Also, U.S. citizens serving with foreign forces in the prosecution of a military action, allied with the U.S., are covered. ([section] 104) Persons who are secondarily liable such as guarantors, sureties, endorsers, comakers, or other such persons may also receive the benefits of the act by the court, if fair and equitable. ([section]103) Those who post bail for servicemembers are protected. ([section]103(c))

The SCRA applies to each of the 50 states and subdivisions thereof and to all territories subject to the jurisdiction of the U.S. ([section]102) The act applies to any judicial or administrative proceeding commenced in any court or agency. Criminal proceedings are not covered.

The law does allow its benefits to be waived, in writing, in a separate instrument from the basic obligation, if the waiver is accomplished after the period of active service. The writing must specify the instrument to which it applies. This provision applies to contracts, bailments, mortgages, trusts, security instruments, and similar obligations. ([section]107)

In actions where no notice of appearance has been filed by the servicemember, the court, before entering judgment for the plaintiff, shall require the plaintiff to file an affidavit with the court stating whether or not the defendant is in the military service and showing necessary facts to support the affidavit or if the plaintiff is unable to determine whether the defendant is in the military...