Military Law Issues
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Servicemembers' Civil Relief Act of 2003
The Servicemembers’ Civil Relief Act of 2003 (SCRA)( 50 USC App § 501 et seq) (formerly known as The Soldiers and Sailors Relief Act of 1940 (SSCRA)) provides several protections to active duty military. This law covers reserve component personnel called to active duty. There are several protections that may apply including:
Protection from eviction if rent is $2400 or less (the act has a formula for determining the ceiling cap due to annual inflation- $2400 is the cap for 2003). Dependents may not be evicted while the military member is serving unless the landlord obtains a court order authorizing eviction. If a notice of eviction is received, the servicemember must ask the court for protection. Courts may grant a stay of up to 3 months or any just order if the military pay is affecting rent payment. This does not protect against avoiding rent payments but only when pay affects the ability to pay.
Termination of pre-service residential lease. There is no longer a need for a military termination clause in the lease. The law allows a right to terminate leases for active duty servicemembers who move pursuant to PCS orders or deployment orders exceeding 90 days. This law covers a "lease of premises occupied, or intended to be occupied, by a servicemember or a service member's dependents for a residential, professional, business, agricultural, or similar purpose." The servicemember must request in writing and include a copy of the orders. Termination for a monthly payment of rent is 30 days after the first date on which the next payment is due following proper notification.
There may be a problem if additional roommates are on the lease. The SCRA is silent as to who must make up the difference, but the burden would likely fall on the remaining roommates. The landlord is not required to decrease the rent and non-military roommates are not protected.
Termination of automobile leases. Pre-service automobile leases may be cancelled if the servicemember receives orders to active duty for 180 days or more. Leases entered while on active duty may be terminated if the servicemember is deployed for a period of 180 days or more or receives PCS orders outside the continental U.S. The servicemember must request in writing the termination, and include a copy of the orders. The servicemember must also return the vehicle within 15 days of the delivery of the termination notice. The lessor may not charge an early termination fee. However, taxes, title and registration fees, and other obligations including reasonable charges must be paid by the servicemember.
Installment Contracts. Certain protections against repossessions of installment contracts are provided in the SCRA. If the contract was made and at least one payment made, prior to active duty, the creditor may not repossess the property and cannot terminate the contract while the servicemember is on active duty unless a court order is obtained.
Delay of all civil court actions including bankruptcy, civil suits, paternity, child custody, administrative proceedings, and foreclosure. Service members can get a delay if they can show that military responsibilities prevent proper representation in court. Legal counsel should be sought immediately. At least a 90-day stay is required to be granted by a court or administrative hearing if requested by the servicemember. Additional stays can be granted at the discretion of the judge or hearing official. The court may on its own motion grant a 90-day stay, but if the servicemember asks for a stay, the court must grant a minimum 90 day stay. The servicemember should submit a letter to the court stating how military duty has affected his ability to appear and when the servicemember can be available to appear, and a letter from the commanding officer must also be submitted stating that current military duty prevents appearance and leave is not authorized at the time of the letter. The communication with the court does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of defenses. Additional stays may be requested, but the court is not obligated to grant the additional stay.
If a default judgment was entered against the servicemember the court must upon application reopen the judgment if the servicemember was materially affected by military service from making a defense and the servicemember had a meritorious or legal defense.Judgments may be stayed and executions vacated.
Statutes of Limitations may be tolled during the period of service.
Reduced interest rate on mortgage payments and credit card debt incurred prior to active duty (but not federally guaranteed student loans- however, these may be deferred or suspended by contacting the lenders). The amount of interest that can be collected on debts of military personnel is limited to 6% (forgiven not deferred) while on active duty. However, military personnel must request the debt reduction and it does not occur automatically. Military personnel should send the written request with orders showing proof of mobilization or activation to active duty along with proof of a difference in military and pre-military pay. Once applied for, the burden is on the creditor to show that military service has not materially affected the ability to repay the debt. The creditor must comply with the rate reduction or apply for court relief which can be granted to the creditor if the creditor satisfies the burden.
Military personnel may vote in their home of record state.
Military personnel are protected from paying taxes in two different states. States may not increase the tax bracket of the nonmilitary spouse by adding military member’s income. Servicemembers may also be protected from enforcement of obligations, taxes, or liabilities during military service or within 6 months afterwards. The court may grant stays of enforcement during which no fine or penalty may accrue.
Legal services added under provision to suspend and reinstate existing professional liability insurance coverage. Health care services were covered previously under the SSCRA.
The SCRA covers National Guard members if called to active duty for a federal emergency for over 30 days pursuant to a contingency mission specified by the President or Secretary of Defense.
Servicemembers can obtain certificates of service from https://www.dmdc.osd.mil/scra/owa/home or from their military personnel office.
SCRA (50 USC App § 501 et seq).