On December 19, 2003 the Soldiers’ and Sailors’ Civil Relief Act was substantially revised when the President signed the Service Members Civil Relief Act ("SCRA" or the "Act").3 The fact that few Attorneys or Law Firms in DuPage County adhere to the mandates of the SCRA, particularly in connection with retaliatory actions against plaintiffs’ Attorneys, is significant; especially since violations of the Act are punishable by Federal criminal charges tantamount to a Class A misdemeanor. Given this state of affairs and the obvious need to inform those practicing before this Court of the significance of the SCRA, this article is a much-needed roadmap to selected provisions of the Act. A word of warning however: this article should not be considered a substitute for a more thorough review of the Act and how it may apply to the reader’s practice.
The Act applies broadly to all civil proceedings, judicial and administrative, whether those proceedings were commenced in Federal or State fora, and regardless of whether they are being heard in the United States or any of its territories.4 As remedial legislation, the jurisdictional reach of the Act is both broad by nature and interpreted liberally to affect its purposes.
The Act protects active service members, reservists called to active duty, and United States citizens serving in the military of an allied nation, from judgments rendered on grounds related to their military service (i.e. due to unavailability). In §5135 the Act’s protections are extended to sureties, guarantors, endorsers, accommodation makers, co-makers, or anyone else who may be primarily or secondarily liable for the debts of a covered person. Likewise, §5386 makes dependents of the covered person eligible for protection: a fact that is particularly significant for Attorneys practicing Forcible Entry and Detainer. Counsel should look into whether the inhabitants of the affected property are related to a covered service-member before taking action, since attempting to evict the dependents of a covered person may itself constitute a violation of the Act.
§5217 of the Act protects covered persons from becoming the subject of default judgments arising from grounds related to their military service. While it can be said to extend beyond default judgments, applying whenever the defendant fails to "appear," the primary thrust of §521 is that the plaintiff has the affirmative duty to determine whether or not the defendant is covered by the Act. Specifically, before seeking a finding of default the plaintiff must aver that; the defendant is not in the military, or that, despite the exertion of due diligence, the plaintiff was unable to make a determination as to their status. The penalty for knowing violation of this provision is imprisonment for up to one (1) year and money damages. If it turns out that the defendant is covered by the Act, the Court must stay the proceedings for a minimum of ninety (90) days. Even then, judgment by default may not be entered against the covered person until the Court appoints an Attorney for them.
Effect of Stay when Covered Person has Notice
Typically in Arbitration cases Attorneys will file an appearance on behalf of their service member Client and apply for a stay. §5228 of the Act is very specific as to the form of such an application, and requires that it be made as soon as the covered person has notice of the action. Following proper application a Court must (i.e. "shall") grant an initial stay for at least ninety (90) days and may grant additional stays. If additional stays are not approved then the Court shall appoint Counsel to represent the absent party. If the covered person is in service overseas, participation via telephone at any eventual arbitration hearing may be arranged with leave of Court. I have often approved such participation, but Counsel for the defendant must first be able to explain how participation by telephone "materially affect(s)" the ability of the covered person to appear and participate.
Vacating Defaults and Staying Execution
Pursuant to §521 of the Act, covered persons have ninety (90) days from the date of their termination or release from military service in which to apply for the vacation of a default judgment. Under the auspices of §5249, a Court may sua sponte stay execution of a judgment or order, and may vacate or stay an attachment or garnishment, where a party is materially affected by reason of military service.
Miscellaneous Additional Provisions
The Act has a number of other provisions of which practitioners should be aware. Here are just a few of them:
Under limited circumstances a covered person may waive their rights under the SCRA.
§519 Legal Representatives11
For purposes of the Act, a covered person may be represented via Power of Attorney.
§526 Statute of Limitations12
Statutes of Limitation are tolled during the period of the covered person’s military service.
§527 Interest Limitation13
While engaged in military service, interest on sums owed by covered persons may be capped at 6% per annum: the cap applies to sums owed by their co-debtor spouse as well. It is the responsibility of the covered person to notify the creditor of their status if they or their spouse will later seek to enforce the cap.
§531 Evictions and Distress14
Attorneys practicing in the area of Forcible Detainer are urged to read §531 of the Act regarding proper treatment of the dependents of a covered person.
§532 Installment Contracts15
A contract may not be rescinded or terminated, nor may property be repossessed without order of the Court, due to a breach that allegedly occurred before or during military service.
§533 Mortgages and Trust Deeds16
Unless the Court causes an appropriate waiver to issue pursuant to §517, no sale, foreclosure, or seizure made during or within ninety (90) days after a covered person’s military service will be upheld as valid.
§535 Termination of Residential or Vehicle Lease17
On the terms and under the conditions set forth in §535 of the Act a covered person may terminate certain types of leases without subjecting themselves to liability.
§538 Extending the Protections of the Act to Others18
If a covered person’s dependant applies to the Court and establishes that their ability to comply with a lease, contract, bailment, or other obligation is materially affected by the military service of that covered person, then that dependent is entitled to the protections of the Act.
What Now for the Practitioner?
The Court is now preparing a Military Affidavit to become available through the Clerk’s office. In the meantime, if you wish to determine whether a given defendant is in the military proceed to the website maintained for this purpose by the United States Department of Defense.19 Complete and return the web application found on that site to conduct military status searches over the Internet.
The Court is seeking volunteers to serve pro bono on behalf of military service personnel. The primary purpose of such an appointment would be to obtain the information required by §522 from the covered person and their commanding officer. Those willing to serve as appointed Counsel on a pro bono basis should contact the DuPage County Bar Association at (630) 653-7779. Of course, such an appointment would not preclude volunteers from acting as retained Counsel for other purposes.
1 The Author extends this thanks to Ms. Wendy Musielak, Law Clerk of the 18th Circuit Court, for her assistance in the preparation of this article.
2 With editorial input from Mazyar M. Hedayat, Esq.
3 50 U.S.C.A. §501, et seq.
4 As of this writing U.S. territories include Puerto Rico and American Samoa.
5 50 U.S.C.A. §513
6 50 U.S.C.A. §538
7 50 U.S.C.A. §521
8 50 U.S.C.A. §522
9 50 U.S.C.A. §524
10 50 U.S.C.A. §517
11 50 U.S.C.A. §519
12 50 U.S.C.A. §526
13 50 U.S.C.A. §527
14 50 U.S.C.A. §531
15 50 U.S.C.A. §532
16 50 U.S.C.A. §533
17 50 U.S.C.A. §535
18 50 U.S.C.A. §538
The Honorable Kenneth A. Abraham is the Supervising Judge of the Mandatory Arbitration Division of Circuit Court of the 18th Judicial Circuit, DuPage County, Illinois.