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SCRA

VIEWS: 11 PAGES: 34

									SERVICEMEMBERS’
 CIVIL RELIEF ACT



        Master Sergeant Al Rohmeyer
                      Chief Paralegal
            Joint Force Headquarters
          Wisconsin National Guard
                                    1
                      GOALS
   Familiarize you with the SCRA
   Learn the operative provisions of the Act
   Provide an awareness of the Act’s provisions in case
    you ever have to handle a case involving a
    servicemember




                                                           2
                 OVERVIEW
   Historical Background
   Purposes and Scope of the Act
   Organization of the Act
   Persons Protected
   Substantive Protections




                                    3
    HISTORY AND BACKGROUND

   Protective legislation can be traced back to Civil War
   World War I
       Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1918
   World War II
       Soldiers’ and Sailors’ Civil Relief Act (SSCRA) of 1940
   Since World War II
       Act has been amended several times
       Substantive changes made in 2003 Amendment
            Name of Act changed to Servicemembers’ Civil Relief Act


                                                                       4
         PURPOSES AND SCOPE
              OF SCRA
   To provide for, strengthen, and expedite the national
    defense through protection extended by this Act to
    servicemembers to enable them to devote their entire
    energy to defense needs of the nation; and
   To provide for the temporary suspension of civil
    proceedings that may adversely affect civil rights of
    servicemembers during military service
   USSC has declared that the Act be ―liberally
    construed‖
       Boone v. Lightner, 319 U.S. 561, 575 (1943).

                                                            5
        ORGANIZATION OF ACT

   50 U.S.C. App. §§ 501-596
   Title I – General Provisions (§§ 511-519)
       Definitions, jurisdiction, and persons protected
   Title II – General Relief (§§ 521-527)
       Protection against default judgments
       Stay of proceedings
       Statutes of limitation
       Maximum rate of interest



                                                           6
        ORGANIZATION OF ACT
               (con’t)
   Title III – Rent, Installment Contracts, Mortgages,
    Liens, Assignments, and Leases (§§ 531-538)
       Major substantive protections against evictions, termination
        of installment contracts, foreclosure on mortgages, and
        termination of leases by lessees
   Title IV – Life Insurance (§§ 541-549)
       Insurance rights and protections
   Title V – Taxes and Public Lands (§§ 561-571)
       Land rights for Servicemembers
       Residence for tax purposes

                                                                   7
        ORGANIZATION OF ACT
               (con’t)
   Title VI – Administrative Remedies (§§ 581-583)
       Inappropriate use of Act
       Certificates of service
       Interlocutory orders
   Title VII – Further Relief (§§ 591-596)
       Anticipatory Relief
       Professional liability protection
       Health insurance reinstatement



                                                      8
              DEFINITIONS (§ 511)

   ―Servicemember‖
       A member of the uniformed services
   ―Military Service‖
       Active Duty military (Title 10, U.S.C.) of 5 branches
        (Army, Navy, Air Force, Marines, & Coast Guard)
            Includes the National Guard if service is under Title 10, U.S.C.
       National Guard member under a call to active service
            (1) authorized by President or Secretary of Defense;
            (2) for a period of more than 30 consecutive days;
            (3) under Title 32, U.S.C., Section 502 (f); and
            (4) for purposes of a national emergency




                                                                                9
    DEFINITIONS (§ 511) (con’t)

   ―Dependant‖
       Spouse;
       Child; or
       An individual for whom the servicemember provided more
        than one-half of the individual’s support for 180 days
        preceding application for relief of Act
   ―Court‖
       Includes all courts and all administrative agencies




                                                              10
         JURISDICTION (§ 512)

   Act applies to the U.S., all states, and all territories
   Act applies to any judicial or administrative
    proceeding (civil cases only)




                                                               11
     PROTECTION OF PERSONS
     SECONDARY LIABLE (§ 513)
   Whenever a court stays, postpones, or suspends (1)
    the enforcement of an obligation, (2) the prosecution
    of a suit or proceeding, (3) the entry of an order, writ,
    judgment, or decree, or (4) the performance of any
    other act, the court may likewise grant a stay,
    postponement, or suspension to a person that is
    primarily or secondarily liable




                                                            12
      PROTECTION AGAINST
    DEFAULT JUDGMENTS (§ 521)
   Section applies to any civil action or proceeding in
    which the defendant does not make an appearance
   If defendant doesn’t make an appearance, plaintiff is
    required to file an affidavit
   If it appears that defendant is in ―military service,‖
    court may not enter a default judgment until the court
    appoints an attorney to represent the defendant.




                                                         13
          PROTECTION AGAINST
          DEFAULT JUDGMENTS
              (§ 521) (con’t)
   Court shall reopen a default judgment entered while
    servicemember is in ―military service‖ or within 60
    days thereafter, when—
       Servicemember applies while in ―military service‖ or 90
        days thereafter, AND
       Shows (1) material affect AND (2) meritorious defense




                                                                  14
    STAY OF PROCEEDINGS (§ 522)

   Section applies to any civil action or proceeding in
    which plaintiff or defendant is in ―military service‖ or
    is within 90 days after release from ―military
    service.‖
       With regard to civil actions relating to mortgages, 90-day
        period is extended to nine months in accordance with
        Housing and Economic Recovery Act, P.L. 110-289
            Note: This change is set to expire on 1/1/2011




                                                                     15
           STAY OF PROCEEDINGS
                (§ 522) (con’t)
   Minimum stay of 90 days upon application of
    servicemember or upon court’s own motion if . . .
       Servicemember shows that military duty requirements
        materially affect the servicemembers ability to appear, and
        indicates in application the date when servicemember can
        appear
       Commanding officer writes letter stating that duty prevents
        appearance and leave is not authorized




                                                                  16
          STAY OF PROCEEDINGS
               (§ 522) (con’t)
   Application for a stay under § 522 does not constitute
    an appearance for jurisdictional purposes and does
    not constitute a waiver of any substantive or
    procedural defense
   Additional stay
       Servicemember must submit application for additional stay
        and must be materially affected
       Court must appoint legal counsel before denying extension




                                                                17
    STATUTE OF LIMITATIONS
            (§ 526)
   Statutes of limitation do not run during the period of
    service
           For or against the service member


   Does not apply to IRS time limits




                                                             18
             MAXIMUM RATE OF
              INTEREST (§ 527)
   Applies to debt bearing interest at a rate greater than
    6% incurred before ―military service‖
       Note: Some creditors read this provision as not applying to
        debts that were incurred after enlistment/appointment in
        Armed Forces
            Ex: PV1 Jones enlists in National Guard on 1/1/2008. Secures a
             mortgage on 2/1/2008. Receives 12-month Title 10, U.S.C.
             deployment orders on 3/1/2008. Bank argues that debt was
             incurred after entry into service and refuses to lower interest rate.
             Bank does not read ―military service‖ as a term of art.




                                                                                     19
         MAXIMUM RATE OF
        INTEREST (§ 527) (con’t)
   Servicemember must provide creditor with written
    notice and a copy of military orders not later than 180
    days after the date of release from ―military service‖
   Court may grant creditor relief from 6% interest rate
    cap if the court determines that the ability of the
    servicemember is not materially affected by the
    ―military service‖
       Court will consider all military pay and allowances v.
        civilian pay




                                                                 20
         MAXIMUM RATE OF
        INTEREST (§ 527) (con’t)
   Obligation on creditor who disagrees to go to court
    for relief
   Applies to almost all kinds of obligations and debts
    that bear interest
       One exception--Federal student loans, 20 U.S.C. §1078(d)
   With respect to mortgages, 6% interest rate cap is
    extended for up to 12 months after return from
    ―military service‖ in accordance with Housing and
    Economic Recovery Act, P.L. 110-289
       Note: This change is set to expire on 1/1/2011



                                                                   21
                  EVICTIONS (§ 531)
   Except by court order, landlord may not—
       (1) evict a servicemember or dependants of a
        servicemember from premises
           (a) that are occupied or intended to be occupied primarily as a
            residence; and
           (b) for which the monthly rent does not exceed $2,400, as adjusted
            by the Consumer Pricing Index
       (2) subject such premises to a distress during the period of ―military
        service
          Self-help evictions prohibited




                                                                             22
        EVICTIONS (§ 531) (con’t)
   If court determines that service materially affects
    servicemember’s ability to pay, court can—
       (1) stay eviction for 90 days unless, in the opinion of the
        court, justice and equity require a shorter or longer period;
        or
       (2) adjust the obligation under the lease to preserve the
        interests of the parties if service materially affects ability to
        pay rent
   Criminal sanctions for violation


                                                                        23
INSTALLMENT CONTRACTS (§ 532)
   After servicemember enters ―military service,‖ a
    contract by the servicemember for the purchase or
    lease of real or personal property to include a motor
    vehicle may not be rescinded or terminated for a
    breach occurring before or during ―military service,‖
    nor may the property be repossessed for such breach
    without a court order




                                                            24
INSTALLMENT CONTRACTS (§ 532)
           (con’t)
   If court determines that service materially affects
    servicemember’s ability to comply with contract,
    court may stay proceedings for a period of time as, in
    the opinion of the court, justice and equity require
   Criminal sanctions for violation




                                                         25
     MORTGAGES AND TRUST
         DEEDS (§ 533)
   Applies to obligations on real and personal property
    owned by servicemember that originated prior to
    ―military service,‖ which is secured by a mortgage or
    trust deed
   No valid foreclosures/seizures without court order
    during service plus 90 days (Due to passage of
    Housing and Economic Recovery Act, P.L. 110-289,
    90-day period has been extended to nine months)
       Change is due to expire on 1/1/2011.


                                                        26
     MORTGAGES AND TRUST
         DEEDS (§ 533)
   Court may (1) stay proceedings or (2) adjust the
    obligation unless no material affect shown
   Criminal sanctions for violation




                                                       27
                TERMINATION OF
                  LEASES (§ 535)
   Covered leases include
       (1) leases of premises
          residential,

          professional,

          business,

          or agricultural and

       (2) leases of motor vehicles




                                       28
                  TERMINATION OF
                 LEASES (§ 535) (con’t)
   Premises leases—
       Applies to pre-service leases of premises; OR leases
        executed after entering ―military service‖ when
        servicemember receives Permanent Change of Station
        orders or deployment orders for not less than 90 days
       Servicemember must deliver written notice with copy of
        military orders to lessor or lessor’s agent
            For a lease that provides for monthly payment of rent, the effective
             date of termination is 30 days after the first date on which the next
             rent payment is due after notice is given
       Servicemember’s termination of lease shall terminate any
        obligation a dependent may have under lease
                                                                                 29
                TERMINATION OF
               LEASES (§ 535) (con’t)
   Motor vehicle leases—
     Applies to pre-service vehicle leases if Servicemember’s
      military orders are for 180 days or more
     Applies to vehicle leases executed after ―military service‖
      commences if —
           servicemember receives OCONUS to CONUS or CONUS to
            OCONUS Permanent Change of Station orders OR
           servicemember receives deployment orders for a period of not less
            than 180 days




                                                                            30
               TERMINATION OF
              LEASES (§ 535) (con’t)
   Motor vehicle leases (con’t)—
       Notice of termination must be in writing, delivered to
        lessor (or lessor’s agent or grantee) along with copy of
        military orders
       Vehicle must be surrendered within 15 days of termination
        notice
       Effective date of termination is date vehicle is surrendered
       No penalties allowed for early termination




                                                                   31
                TERMINATION OF
               LEASES (§ 535) (con’t)
   Any person who knowingly
       (1) seizes, holds, or detains the personal effects, security
        deposit, or other property of the servicemember or
        dependent or
       (2) interferes with removal of such property is subject to
        criminal sanctions




                                                                       32
                  SUMMARY
   SCRA provides protections for citizens called to
    ―military service‖
   Provides for suspension of certain civil liabilities
    during the period of ―military service‖
   ―Material affect‖ a prerequisite for several SCRA
    protections
   SCRA designed to protect military members and their
    dependents


                                                       33
Questions?
       Master Sergeant Al Rohmeyer
                     Chief Paralegal
           Joint Force Headquarters
          Wisconsin National Guard
                      608-242-3076

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