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December 03, 2020

Stays of Proceedings

I just got an official court document saying that my car dealer wants to hold a hearing to take back my car. I am on active duty so I obviously won’t be able to attend the hearing. Help!

The SCRA says that if you are on active duty (or it is within ninety days of you being released from active duty) you can ask the court to halt the hearing for at least ninety days (in legal terms, this is called a stay of proceedings). The ability of a servicemember—possibly deployed in a war zone thousands of miles away from a state or federal courthouse —to request and obtain a stay of proceedings is a key part of the SCRA.

If you ask the court to halt the hearing, it must do so for at least ninety days. If you need more time, the court can grant you an extension, but it isn’t guaranteed like the first ninety days are.

How exactly do I ask the court to delay the hearing?

You must send the court “a letter or other communication” (we recommend it be in some form of writing) explaining (1) how your military duties materially affect your ability to appear in court and (2) when you would be available to appear in court. Also, your communication to the court must include a “letter or other communication” (again, we recommend something in writing) from your Commanding Officer, stating that your military duty prevents you from appearing in court and that military leave is not authorized for you at this time. Your military legal assistance attorney can assist you in making the request properly; but the lawsuit is against you, not your commander and so it’s important that you review what your commander intends to send to the court to ensure it conforms to the law’s requirements.

How do I ask for more time beyond the first ninety days?

Follow the same steps as you did when asking for the first delay. This request for an extension is at the discretion of the court. But, if you have a valid reason related to your military duties (e.g., deployment), the judge should likely grant it. Be sure to ask your commander to indicate that he or she won’t grant you leave to attend or if you will be granted leave, when that leave will be.

What if the court doesn’t extend the delay beyond the first ninety days?

If the court denies your request for an extension, the court must appoint an attorney to represent you. You will be contacted by this attorney, and you should work with him or her to prepare your defense. Suggest that any hearing date coincide with any Rest and Recreation (R&R) leave you may be granted, including some time to meet with your attorney before the hearing starts. Note too that some courts and administrative agencies allow for hearings to be conducted by video teleconferencing.