South Carolina Lawyer
SC Lawyer, November 2006, #4.
The New Servicemembers Civil Relief Act
South Carolina Lawyer November 2006 The New Servicemembers Civil Relief Act By Mark E. Sullivan Introduction
On December 19, 2003, President Bush signed into law the Servicemembers Civil Relief Act (SCRA), a complete revision of the statute known as The Soldiers' and Sailors' Civil Relief Act, or SSCRA. Even for lawyers with no military base nearby, this federal statute is important. There are more than 160,000 National Guard and Reserve personnel at present who have been called to active duty, and more than 40 percent of the armed forces serving in Iraq are Reserve/Guard servicemembers. These Reserve Component (RC) military members often come from the big cities and small towns of America, and lawyers need to know their way around the basic federal statute that protects those on active duty. Although previously there was limited coverage by the SSCRA for Guard members, the new Act extends protections to members of the National Guard called to active duty for 30 days or more pursuant to a contingency mission specified by the President or the Secretary of Defense. 50 U.S.C. App. § 511(2)(A)(ii).
Prior to the passage of the SCRA, the basic protections of the SSCRA for the servicemember (SM) included:
postponement of civil court hearings when military duties materially affected the ability of a SM to prepare for or be present for civil litigation;
reducing the interest rate to six percent on pre service loans and obligations;
barring eviction of a SM's family for nonpayment of rent without a court order for monthly rent of $1,200 or less;
termination of a pre service residential lease; and
allowing SMs to maintain their state of residence for tax purposes despite military reassignment to other states.
The SSCRA, enacted in 1940 and updated after the Gulf War in 1991, was still largely unchanged as of 2003. Congress wrote the SCRA to clarify the language of the SSCRA, to incorporate many years of judicial interpretation of the SSCRA and to update the SSCRA to reflect new developments in American life since 1940. Since many of the Act's provisions are particularly useful (and potentially dangerous) in domestic litigation, the family law attorney should have a good working knowledge of them. Here's an overview of what the SCRA does.
Stays and delays
The SCRA expands the application of a SM's right to stay court hearings to include administrative hearings. Previously only civil courts were included, and this caused problems in cases involving administrative child support determinations as well as other agency determinations that impacted servicemembers. Criminal matters are still excluded. 50 U.S.C. App. § 511-512. There are several provisions regarding the ability of a court or administrative agency to enter an order staying, or delaying, proceedings. This is one of the central points in the SSCRA and now in the SCRA the granting of a continuance that halts legal proceedings.
In a case where the SM lacks notice of the proceedings, the SCRA requires a court or administrative agency to grant a stay (or continuance) of at least 90 days when the defendant is in military service and the court or agency decides that there may be a defense to the action, and such defense cannot be presented in the defendant's absence or with the exercise of due diligence, counsel has been unable to contact the defendant (or otherwise determine if a meritorious defense exists). 50 U.S.C. App. § 521(d).
In a situation where the military member has notice of the proceeding, a similar mandatory 90 day stay (minimum) of proceedings applies upon the request of the SM, so long as the application for a stay includes two things. The first is a letter or other communication that 1) states the manner in which current military duty requirements materially affect the SM's ability to appear and 2) gives a date when the SM will be available to appear. The second is a letter or other communication from the SM's commanding officer stating that 1) the SM's current military duty prevents appearance and 2) that military leave is not now authorized for the SM. 50 U.S.C. App. § 522. Of course, these two communications may be consolidated into one if it is from the SM's...