Soldier's & Sailor's Civil Relief Act

A number of excellent articles which are referenced time and again. Great reference materials from our members.

Soldier's & Sailor's Civil Relief Act

Unread postby Lawmoe » Mon Mar 28, 2005 1:51 pm

This board has addressed the Soldier’s and Sailors Civil Relief Act before. However, I don’t think it was ever clearly spelled out what it means. As you know, the transitory nature and exigent circumstances surrounding military service often makes it very difficult for a member of the military to: (1) Pay financial obligation; or (2) assert or defend their legal rights. As a direct response to this concern, Congress enacted the Soldiers and Sailors Civil Relief Act of 1940. It can be found on the internet at http://www.chinfo.navy.mil/navpalib/que ... 50top.html

Deployment is not required for the Soldiers and Sailors Civil Relief Act to be effective. All that is required is military service The SCRA covers all Active Duty service members, Reservists and the members of the National Guard while on active duty. The protection begins on the date of entering active duty and generally terminates within 30 to 90 days after the date of discharge from active duty. Specifically, Subsection 101(2) [50 U.S.C. App. § 511] provides that protection of the Act begins on the date on which the person enters active service and additionally provides "it shall end on the date of the person's release from active service or death while in active service, but in no case later than the date when this Act ceases to be in force."

It is important to recognize, however, that military service is not an absolute bar on the prosecution of any legal action. In other words, it does not stop a case in its tracks. Instead, each case must be analyzed under the Soldiers and Sailors Civil Relief Act. This review is often performed by a State court to determine to what extent the service member's military service has materially affected the particular situation or case. After this crucial determination has been made, either in favor of or adversely to the service member, the court may proceed with or stay the case at bar.

The concept of what constitutes a material effect comes in two very broad, and sometimes interconnected, contexts. How does the military service:
1. interfere with the soldier’s the ability to protect his/her rights; and
2. interfere with the soldier’s ability to meet financial obligations.

In short, trial courts often decide whether military service does, in fact, materially affect the service member's ability to protect his or her rights. As a result, one court appearance is often required. Proceedings may be stayed until the service member is available or they may appear through their attorney to argue to the Court how their service materially affects their rights in the case. Only after evaluating the effect of military service, the court may either grant a stay of proceedings or some other relief if the service member is equitably entitled to it, or deny relief entirely.

Some issues that the SSCRA is designed to address include:

• outstanding credit card debt
• mortgage payments
• pending trials
• taxes
• terminations of lease.
Some protections of the law:

• INTEREST ON DEBT. The act provides that no obligation or liability incurred by a person in military service, prior to his entry into military service, shall bear interest at a rate in excess of six percent per annum

• STAY OF COURT PROCEEDINGS. The act allows courts to address whether the military service affect s the soldier’s ability to participate in a court proceeding in a material way (regardless of whether the action was commenced before or during the period of service or even within 60 days thereafter). If it is materially affected, the Court may (1) stay the execution of any judgment or order entered against the serviceperson; and/or (2) can vacate or stay any attachment or garnishment of property, money, or debts in the hands of another, whether before or after judgment.

• PREVENT EVICTION. If a service person is renting a home for a rental fee of $1200 or less per month and the residence is used as a homestead, a primary dwelling, by immediate family members, dependents or a person in military service, the landlord must obtain leave of court to evict them.
Lawmoe
Moderator Emeritus
 
Posts: 5335
Joined: Sat Jan 15, 2005 9:26 am
Location: Minnesota

Return to Reference

Who is online

Users browsing this forum: No registered users and 3 guests