Past Protections and Passage of the SCRA
The predecessor to the SCRA was the Soldiers’ and Sailors’ Civil Relief Act, enacted in 1940. Its protections included
- Postponement of civil court hearings when military duties materially affected the ability of a servicemember to prepare for or be present for civil litigation;
- Reducing the interest rate to 6 percent on preservice loans and obligations;
- Barring eviction of a servicemember’s family for nonpayment of rent without a court order for monthly rent of $1,200 or less;
- Termination of a preservice residential lease; and
- Allowing servicemembers to maintain their state of residence for tax purposes despite military reassignment to other states.
By the early 2000s, this 1940 enactment was in need of major changes, not just a facelift. That is when Congress enacted the SCRA. The SCRA was written to clarify prior law, to incorporate many years of judicial interpretation of the prior law, to update the law to reflect new developments in American life since 1940, and to create new protections for servicemembers.
General Civil Relief Provisions
One of the most far-reaching changes in the SCRA is the expansion of a servicemember’s right to request and obtain a stay of proceedings. The hearings not only cover civil court matters but also administrative hearings. The previous coverage of only civil court matters caused problems in cases involving administrative child support determinations as well as other agency determinations that had an impact on servicemembers.4 Criminal matters, however, are still excluded under the SCRA.5
The SCRA defines a “legal representative” of the servicemember as either “[a]n attorney acting on the behalf of a servicemember” or “[a]n individual possessing a power of attorney.”6 Under the SCRA, a servicemember’s legal representative can take the same actions as a servicemember. This may cause some concern in courtroom cases, where the only person usually allowed to speak for a party is the attorney for that party.
The former statute referred to “dependents” and provided several protections that extended to them, but it never defined the term. The SCRA now contains a definition of “dependent,” which includes anyone for whom the servicemember has provided more than half of his or her support during the 180 days before an application for relief under the SCRA.7 This is intended to include dependent parents and certain dependent adult children.
Stays, Delays, and Rainy Days
There are several provisions regarding the ability of a court to enter an order staying court proceedings. This was one of the central points in the prior law; the granting of a continuance that halts legal proceedings remains a key issue with the SCRA.
In a case where the servicemember has not made an appearance in the proceedings, the SCRA requires a court to grant a stay (or continuance). A stay of at least 90 days will be allowed when the defendant is in military service and:
- the court 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).8
The court should examine any actions taken or documents filed by the servicemember-defendant as they may constitute an appearance, which would mean that the “default section” of the SCRA would not apply.9
The SCRA contains several specific revisions regarding the taking of a default judgment. A plaintiff seeking a default judgment must sign and file an affidavit stating that the defendant is not in the military service.10 It can also state that the defendant is in the military or the military status of the defendant is unknown.
To make it possible to conduct a search and sign the affidavit, the SCRA allows the plaintiff to request a statement about military service from the Defense Manpower Data Center. The details on how counsel conducts this search to find out if the defendant is in the military and obtains an authenticated certificate that is produced online are found in “A Judge’s Guide to the Servicemembers Civil Relief Act.”11
If the court grants a default judgment against a servicemember, he or she may move to reopen that judgment by taking several steps. First, the servicemember must show that the judgment was entered during military service or within 30 days after the termination of service. Second, the servicemember must file a motion asking that the court set aside the default judgment, and this needs to be done during active duty or within 90 days of leaving the service. Third, the servicemember must show that no appearance by the servicemember was entered in court before entry of the default judgment. And finally, the servicemember must establish that military service had a material effect on his ability to defend the case and that there is a valid defense to the action.
The Motion to Stay Proceedings
When the servicemember has notice of the proceeding, a similar mandatory stay for at least 90 days applies upon his or her request.12 Failure to grant a stay may result in reversal by the appellate court or, in unusual cases, the grant of an extraordinary writ.13 Even if the motion is poorly drafted or omits an element, the court should fairly consider the application and rule in favor of the servicemember if it appears that fairness and justice require a stay and that the servicemember has been reasonably diligent.14 A denial of the stay request may be proper, however, if essential information has not been provided by the servicemember-applicant15 or if he or she has acted inequitably.16 A stay can suspend the lawsuit completely, or it can apply to hold up some phase of it. A stay may be considered and granted by the court during any stage of the proceedings.
The court must grant the stay if the request includes two items. The first is a letter or other communication that
- states the manner in which current military duty requirements materially affect the servicemember’s ability to appear, and
- gives a date when the servicemember will be available to appear.
The second element is a letter or other communication from the servicemember’s commanding officer stating that
- the servicemember’s current military duty prevents appearance, and
- military leave is not authorized for the servicemember at the time of the communication.17
An application for an additional stay (lasting longer than 90 days) may be made at the time of the original request or later.18 If an additional stay is denied, then the court must appoint counsel to represent the servicemember in the action or proceeding.19
An application for a stay does not constitute an appearance for jurisdictional purposes, nor does it waive any defense (including a defense as to lack of personal jurisdiction). Pre-SCRA law resulted in a recommended practice to avoid having the military attorney or the servicemember request a stay out of concern that the court might construe the stay request as a general appearance. The SCRA, however, eliminates this concern, making clear that a stay request “does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense.”20
A servicemember must exercise due diligence and good faith in trying to arrange to appear in court.21 In Judkins v. Judkins,22 a case applying pre-SCRA law, the wife filed a domestic lawsuit in August 1988. The defendant was an Army lieutenant colonel stationed at Fort Bragg. After numerous continuances due to his military duties, he was finally given a trial date of August 31, 1992. When he failed to respond to discovery, failed to complete the pretrial order, and moved for a continuance on August 31, adding (apparently for the first time) a motion for a stay under the SCRA’s predecessor, the trial court found that he had failed to exercise good faith and proper diligence in appearing and resolving his case and then denied the motions of the defendant.
The court of appeals framed the issue as whether the trial court had erred in denying the servicemember-defendant’s motion for a stay. It noted that the only evidence of the servicemember’s unavailability was a letter from the Army stating that he was to depart for Southeast Asia on August 30, 1992, for about 46 days. In addition, there was no evidence in the record as to whether the servicemember had at any time requested leave or whether leave was likely to be granted upon request. Finally, the servicemember made no showing as to how his defense would be prejudiced or his rights materially affected by his absence. In the end, the court of appeals accepted the trial court’s determination that the servicemember had failed to exercise good faith and due diligence.
The law regarding the 6 percent interest rate cap on preservice loans and obligations is clarified in the SCRA. The rate cap can include credit cards, mortgages, and even some student loans. Any interest in excess of 6 percent per year must be forgiven. The absence of such language in pre-SCRA law had allowed some lenders to argue that interest in excess of 6 percent was merely deferred.23
The servicemember must request the interest reduction in writing and include a copy of his or her military orders.24 Once in receipt of notice, the creditor is required to grant the relief effective on the date the servicemember is called to active duty. The creditor must forgive any interest in excess of 6 percent with a resulting decrease in the amount of periodic payment that the servicemember is required to make.25 The creditor may challenge the rate reduction if it can show that the servicemember’s military service has not materially affected his or her ability to pay.26
The interest rate cap lasts for the duration of active-duty service. The interest rate cap will apply from the initial date of active-duty service. The servicemember must provide written notice to the creditor and a copy of military orders not later than 180 days after his/her termination or release from military service.
New Lease Provisions
Before the SCRA, absent a court order, a landlord could not evict a servicemember or the dependents of a servicemember from a residential lease when the monthly rent was $1,200 or less. The SCRA modifies the eviction protection section by barring evictions from premises occupied by servicemembers for which the monthly rent does not exceed $2,400 for the year 2003.27 The SCRA also provides a formula to calculate the rent ceiling for future years. Using this formula, the 2016 monthly rent ceiling is $3,451.20. The court or counsel can easily check this for the current year by doing an Internet search using “Publication of Housing Price Inflation Adjustment under United States Code” as the search term. To qualify, the military member must show that military service materially affects his or her ability to pay rent.
The SCRA also substantially changed the leases subject to these provisions. Pre-SCRA, the statute allowed a servicemember to terminate a preservice “dwelling, professional, business, agricultural, or similar” lease executed by or for the servicemember and occupied for those purposes by the service member or his dependents. The purpose of this provision was to allow military members who are just entering active-duty service to lawfully terminate a lease without repercussions. That law, however, did not protect the servicemember on active duty who was required to move due to military orders.
The SCRA still applies to leases entered into prior to entry on active duty. It adds a new provision, however, extending coverage to leases entered into by active-duty servicemembers who later receive orders for a permanent change of station (PCS) or a deployment for a period of 90 days or more. The member may terminate a lease by providing written notice to the landlord along with a copy of the military orders. The termination of a lease that provides for monthly payment of rent will occur 30 days after the first date on which the next rental payment is due and payable after the landlord receives proper written notice.
The SCRA also adds a new provision allowing the termination of vehicle leases (for business or personal use) by servicemembers and their dependents. Preservice vehicle leases may be canceled if the servicemember receives orders to active duty for a period of 180 days or more. Vehicle leases entered into while the servicemember is on active duty may be terminated if he or she receives PCS orders to a location outside the continental United States or deployment orders for a period of 180 days or more.
There is also a new section on cell phone agreements. The servicemember can suspend or terminate a cell phone contract if deployed outside the continental United States for at least 90 days or in receipt of PCS orders. Service providers are prohibited from assessing penalty fees or requiring contract extensions as a result of the suspension or termination of the original agreement. The servicemember is eligible for this protection if he or she signed the cell phone agreement prior to receiving active-duty service orders and military service materially affected the ability to pay. To take advantage of this, the servicemember must provide written notice of suspension/termination along with a copy of the applicable military orders.
Statutes of Limitations
Statutes of limitations are suspended during active duty. This provision applies to the ability of a third party to sue the military member and also the servicemember’s ability to initiate legal proceedings against someone else:
The period of a servicemember’s military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember’s heirs, executors, administrators, or assigns.28
Because this section appears to cover any period of time that is limited by law, regulation, or order for bringing an action or proceeding in court by or against a servicemember, some courts have not limited the terms of the SCRA solely to traditional statutes that limit or prohibit lawsuits outside of a particular period of time. Thus, for example, an Ohio appellate court reversed an adoption decree where the grounds were de minimis contact for more than one year; the SCRA was held to toll this period of time.29
The broader approach is not universal, however; other courts have taken a “strict construction approach.”30 Note also that the doctrine of laches may apply to limit the ability of a claimant to bring an action, whether the case is brought by or against a servicemember.31
And finally, the SCRA expressly states that the limitations periods apply to any civil action or proceeding “including any child custody proceeding.”32 Elsewhere, the SCRA makes specific references to child custody protections for servicemembers and their families:
(a) Duration of temporary custody order based on certain deployments
If a court renders a temporary order for custodial responsibility for a child based solely on a deployment or anticipated deployment of a parent who is a servicemember, the court shall require that the temporary order shall expire not later than the period justified by the deployment of the servicemember.
(b) Limitation on consideration of member’s deployment in determination of child’s best interest
If a motion or a petition is filed seeking a permanent order to modify the custody of the child of a servicemember, no court may consider the absence of the servicemember by reason of deployment, or the possibility of deployment, as the sole factor in determining the best interest of the child.
(c) No Federal jurisdiction or right of action or removal
Nothing in this section shall create a Federal right of action or otherwise give rise to Federal jurisdiction or create a right of removal.
In any case where State law applicable to a child custody proceeding involving a temporary order as contemplated in this section provides a higher standard of protection to the rights of the parent who is a deploying servicemember than the rights provided under this section with respect to such temporary order, the appropriate court shall apply the higher State standard.
(e) Deployment defined
In this section, the term “deployment” means the movement or mobilization of a servicemember to a location for a period of longer than 60 days and not longer than 540 days pursuant to temporary or permanent official orders—
(1) that are designated as unaccompanied;
(2) for which dependent travel is not authorized; or
(3) that otherwise do not permit the movement of family members to that location.
The SCRA does not require breach or default before being available to provide protections to covered individuals. The anticipatory relief provision of 50 U.S.C. § 4021 states that
APPLICATION FOR RELIEF. A servicemember may, during military service or within 180 days of termination of or release from military service, apply to a court for relief—(1) from any obligation or liability incurred by the servicemember before the servicemember’s military service; or (2) from a tax or assessment falling due before or during the servicemember’s military service.
These anticipatory provisions can be used to request relief from preservice obligations, such as child support or alimony, when a prospective breach is anticipated. For example, when the servicemember is earning more in his civilian job before mobilization than he will be earning on active duty, and the civilian wage garnishment will terminate upon his call to active duty, the servicemember should use this section to request a reduction in child support or alimony and to request a new garnishment from Defense Finance and Accounting Service to pay the other party on a timely basis.
Waiver of Rights
It is possible to waive rights that are granted in the SCRA. A waiver, however, must be set out in a separate document from that which stated the original obligation, and it must be printed in at least 12-point font.
Further Relief and Coverage
Pre-SCRA law applied to members of the National Guard only if they were serving in a Title 10 status, that is, pursuant to federal orders, not a call-up under state law by the governor. These protections have now been extended 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.33
In addition to these improvements, amendments made in 2010 added Title VIII to the SCRA. This section includes authorization for enforcement of SCRA by the attorney general,34 recognition of a private cause of action to recover damages and attorney fees,35 and the preservation of other remedies, including punitive damages.36
Although the law for more than a decade, the SCRA leaves many questions unanswered. Among them are these:
- What is the attorney supposed to do once appointed if an additional stay request is denied?
- Must the attorney provide representation of the servicemember from start to finish, or is representation limited to the task of reporting back to the court as to the servicemember’s availability and intentions? This is, after all, a client whom the attorney has never met, who is currently absent from the courtroom, and who may be unavailable for even a phone call if serving on some distant shore in harm’s way.
- Who pays for the representation or is it done pro bono?
- Can the court assess costs, expenses, and attorney fees to pay for appointed counsel? Is this yet another “unfunded mandate”? There are no answers in the SCRA.37
Judges should be aware of the rights, limitations, and protections that are afforded by the Servicemembers Civil Relief Act. Giving special attention to these terms in the SCRA means that the court will provide an extra measure of protection for the man or woman in uniform in civil cases.
1. Servicemembers Civil Relief Act (SCRA), Pub. L. No. 108-189, 117 Stat. 2835 (2003).
2. Servicemembers (SM) who are covered include members of the Army, Navy, Air Force, Marine Corps, and Coast Guard who are on active duty under 10 U.S.C. § 101(d)(1); members of the National Guard who are called to active duty as authorized by the president or the Secretary of Defense for over 30 consecutive days under 32 U.S.C. § 3902(f) to respond to a national emergency declared by the president and supported by federal funds; and commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration. 50 U.S.C. § 3911. Military contractors are not on active duty and are not covered. Verhey v. Stewart, CL-2010-6503, 82 Va. Cir. 482, 2011 Va. Cir. LEXIS 49 (Apr. 11, 2011); In re Gaddy, Debtor, Case No. 02-16042-7 2004 Bankr. LEXIS 1392 (Bankr. Kan. Apr. 12, 2004).
3. See, e.g., In re: Inquiry Concerning a Judge, Brenda G. Branch, Respondent, 367 N.C. 733, 767 S.E.2d 47 (2015) (district court judge received public reprimand for not knowing or applying SCRA).
4. For simplicity, “court” is used below where “agency or court” is intended.
5. 50 U.S.C. § 3911–3912.
6. Id. § 3920.
7. Id. § 3911(4).
8. Id. § 3912(d).
9. See, e.g., Vandemark v. Jimenez, No. 01-09-00169-CV, 2010 Tex. App. LEXIS 2351 (Apr. 1, 2010) (when the SM attended a hearing and signed a recalendaring order in open court, the appellate court found that the trial judge did not err in refusing to set aside a default order because the SM’s actions constituted an appearance and an affidavit of nonmilitary service was unnecessary).
10. See, e.g., DCSE/C.M.S. v. W.B.S., File No. CK11-01552, 2013 Del. Fam. Ct. LEXIS 7 (Jan. 28, 2013) (interim order for child support, taken by default by child support agency, had to be vacated due to failure of agency to file necessary affidavit of military status).
11. “A Judge’s Guide to the Servicemembers Civil Relief Act” is at http://www.americanbar.org > Section of Family Law > Military Law Committee. This website also contains “ARE WE THERE YET? A Roadmap for Appointed Counsel Under the Servicemembers Civil Relief Act.” Other resources on the Internet include the Servicemembers Civil Relief Act information center at the public preventive law page of the Army Judge Advocate General’s Corps, found at http://www.jagcnet.army.mil/legal. The Army JAG School’s guide to the SCRA is found at http://www.americanbar.org/content/dam/aba/events/legal_assistance_military_personnel/ls_lamp_cle_mar11_scra_outline.authcheckdam.pdf. R. Chuck Mason, Cong. Research Serv., The Servicemembers Civil Relief Act (SCRA): An Explanation (Aug. 27, 2014).
12. See, e.g., Hernandez v. Hernandez, 906 A.2d 429 (Md. Ct. Spec. App. 2006) (After attempting to handle SCRA motion pro se, SM at the last moment filed a motion that was prepared by attorney, correctly pleading a stay request. Court of appeals reversed trial judge’s order for custody, child support, pension division, and alimony, stating that SM satisfied the statutory requirements for a stay, judge was required to grant the stay, and the statute leaves no room for judicial discretion.).
13. See, e.g., Wood v. Woeste, 461 S.W.3d 778 (Ct. App. Ky. 2015) (Father who has custody order for his 10-year-old son was living with girlfriend and the son. When the father received notice of a six-month deployment, he left the son behind with the girlfriend and his parents. The mother filed a motion for custody and the father responded with a stay request under the SCRA. The trial court’s denial of the stay request was overruled by the court of appeals, which issued a writ of prohibition.).
14. See, e.g., Vockroth v. Vockroth, 130 Haw. 435, 312 P.3d 311 (Haw. Ct. App. 2013) (Judge erred when he denied request for stay of proceedings by SM. Although “not a model of clarity,” the SM provided his own affidavit and letter from his commanding officer which—taken together—substantially satisfied the requirements of a stay request.); In the Interest of H.S.J., No. 03-10-00007-CV, 2010 Tex. App. LEXIS 9208 (Nov. 16, 2010) (SM’s stay request in custody case should have been granted, even though it lacked a statement as to a date when she would be able to return for the hearing).
15. See, e.g., Stearns v. Stearns, 476 S.W.3d 541 (Tex. App. Houston 14th Dist. 2015) (SM submitted his own letter and one from military legal assistance attorney, both arguing that he could not attend mediation in person (after he’d been ordered to do so), or deposition. No information was provided from his commanding officer, and the denial of stay was upheld as within court’s discretion).
16. See, e.g., In re Brown, 2014 Cal. App. Unpub. LEXIS 3319 (Cal. App. 4th Dist. May 9, 2014) (sailor not entitled to stay under the SCRA when his case was pending for 18 months on docket to decide division of pension, he withheld info on $30,000 Career Status Bonus until the last minute and then failed to provide any proof or evidence as to his claim that the money was used to buy a house in Arizona for the parties, and there was no showing how failure to grant another stay would have prejudiced his case).
17. 50 U.S.C. § 3932.
18. Id. § 3932(d)(2).
20. Id. § 3932(c)
21. See, e.g., Boone v. Lightner, 320 U.S. 809, 64 S. Ct. 26, 88 L. Ed. (1943); Plesniak v. Wiegand, 31 Ill. App. 3d 923, 927–30, 335 N.E.2d 131 (1975); Underhill v. Barnes, 161 Ga. App. 776, 288 S.E.2d 905 (1982); Palo v. Palo, 299 N.W.2d 577 (S.D. 1980).
22. 113 N.C. App. 734, 441 S.E.2d 139 (1994).
23. 50 U.S.C. § 3937(a)(2).
24. Id. § 3937(b)(1).
25. Id. § 3937(b)(2).
26. Id. § 3937(c).
27. Id. § 3951(a).
28. Id. § 3936.
29. In re Adoption of W.C., 189 Oh. App. 3d 386, 938 N.E.2d 1052 (2010). For cases construing broadly the terms in section 3936, see also In re Adoption of J.D.P., 198 P.3d 905 (Okla. Ct. App. 2008); Worlow v. Miss. River Fuel Corp., 444 S.W.3d 461 (Mo. 1969); Ludwig v. Anspaugh, 785 S.W.2d 269 (Mo. 1990); State ex rel. Estate of Perry v. Roper, 168 S.W.3d 577 (Mo. App. 2005); Cooper v. Allain, Civil Action No. 08-702-JVP-SCR, 2009 U.S. Dist. LEXIS 31384 (M.D. La. Apr. 14, 2009) (dicta).
30. See, e.g., Doe v. City of Duncan, 789 S.E.2d 602 (S.C. Ct. App. 2016) (Dismissal of case affirmed due to failure to serve defendant within 120 days of filing suit and failure to timely commence action. Plaintiff claimed that SCRA preempts any state law time limits to file an action. Appellate court ruled otherwise, stating that SCRA only applies to time limits for bringing a suit, not to serving or amending the lawsuit.).
31. See, e.g., Ingham v. United States, 2007 U.S. Claims LEXIS 497 (Fed. Cl. Nov. 26, 2007) (court held that, although SCRA does allow tolling of statute of limitations for active-duty SMs, the doctrine of laches prevented plaintiff-SM from proceeding on claim because his delay of 17 years in bringing suit for back pay and allowances was inexcusable and caused economic prejudice and injury to defendant, the United States). Mere passage of a significant period of time for filing a claim, when accompanied by a reasonable excuse for failure to serve a defendant-SM, may not constitute failure to prosecute. Oversole v. Manci, 216 P.3d 621 (Colo. Ct. App. 2009) (trial court held to have abused its discretion in ruling that the plaintiff failed to prosecute and in dismissing case with prejudice; defendant’s service in the military could provide a reasonable excuse for a plaintiff’s failure to obtain service).
32. 50 U.S.C. § 3931(a)
33. Id. § 3911(2)(A)(ii).
34. Id. § 4041.
35. Id. § 4042.
36. Id. § 4043.
37.See Wells Fargo Bank v. Pederson, CV136018168, 2014 Conn. Super. LEXIS 1032 (Apr. 30, 2014) (excellent discussion of duties of the appointed attorney, citations of authority, power of allocating costs for the payment of attorney).