The Servicemembers Civil Relief Act of 2003 (SCRA) provides special provisions to support individuals who are actively protecting the United States by participating in military activities. SCRA provides protections that may be available for any action commenced in any court. There are provisions of SCRA that are applicable in bankruptcy court.
The Civil Rights Division of the Department of Justice is responsible for enforcing the SCRA. The SCRA is an expansion and revision of the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA). The SCRA is a federal law designed to assist and protect military members while they are actively serving. The SCRA may provide an active duty service member with assistance for things such as prepaid rent, rental agreements, credit card interest rates, mortgage interest rates, life insurance, and income tax payments, among others.
What Does the SCRA Do?
The purpose of the SCRA is to assist active duty military personnel in focusing on defending the country instead of personal matters that may be occurring at home. During active military service, the SCRA may provide temporary suspension of legal matters such as judicial and administrative proceedings. The SCRA may also provide a temporary stop to transactions such as wage garnishments during active service.
The SCRA may provide mortgage forbearance, or the ability to make a lower payment or pause mortgage payments. This is allowed by the individual’s mortgage servicer and any missed or lowered payments will have to be paid at a later date. The SCRA may also provide a lower interest rate on certain debts incurred prior to entering active service.
Can the SCRA Protect Against an Entry of Default Judgment?
Yes, the SCRA can protect active service members from having default judgments entered against them. A default judgment may be entered against a defendant who fails to appear in court. Obviously, if an individual is actively serving, they may not receive notice of a court date or may not be able to physically appear in court.
Prior to a default judgment being entered, a plaintiff must usually submit an affidavit including whether or not the defendant is in the military. If a defendant is a service member, the court cannot enter a default judgment against them until they are appointed an attorney to represent them. The appointed attorney or the court can request a stay of proceedings for 90 days or more if:
- There exists a defense that cannot be presented without the defendant’s presence;
- The defendant’s appointed attorney has not been able to contact the defendant; and/or
- The appointed attorney cannot contact the defendant to determine if there are any defenses to the claims.
The SCRA provides that a default judgment entered against a service member defendant during their active duty or within 60 days after active duty service has ended, the default judgment can be reopened and set aside. In order to have the default judgment set aside, the service member must show that they were unable to appear in person and they have a legal defense to the claim against them.
Can the SCRA Delay Court and Administrative Proceedings?
Yes, the SCRA can delay court and administrative proceedings while a service member is on active duty. If a service member receives notice to appear in a court or administrative proceeding but they are unable due to military service duties, they can request the proceeding be postponed. The mandatory minimum postponement time is 90 days.
The service member must request the postponement in writing and must include the following information:
- Why the service member’s current military duty prevents them from appearing;
- A date when they will be able to appear; and
- A letter from the service member’s commander stating that duties prevent them from appearing and they are not authorized to leave during the time of the scheduled court appearance.
The letter and request of the court is not considered a court appearance. The court may grant further delays at its discretion. If the court denies additional delays, it must appoint an attorney to represent the service member.
Can the SCRA Help With Leases?
Yes, the SCRA can provide protection for service members families at home during times of active duty. The SCRA may prevent a landlord from evicting the service member or their dependents while they are serving. This can include a spouse and children or any other individual for whom the service member is legally responsible.
The SCRA may also allow you to terminate a lease if a service member receives orders for a permanent change of station (PCS) or for deployment orders for a period of 90 days or more. The SCRA may also allow the service member to terminate leases for automobiles used by the service member or their dependents. A lease signed prior to active duty may be cancelled if active duty orders of 180 days or more are received.
If a service member enters into an automobile lease while on active duty, that least may be terminated if they receive PCS orders to a location outside the continental U.S. or deployment orders for 180 days or more.
Who Is Eligible Under the SCRA?
The SCRA provides protections to a wide range of individuals across the armed forces in the United States. These may include:
- Active duty military personnel;
- Reserve military personnel;
- National Guard members called to active duty;
- Citizens of the United States who are serving in the military of a U.S. ally during war or other military actions; and/or
- Dependents of active military members, in some cases.
In general, to take advantage of protections under the SCRA, the service member needs to show that their service has a “material effect” on the legal or financial matter they want assistance with. Service members are generally protected for eligible matters under the SCRA until 90 days after they have been discharged from active duty. The protections also apply if the service member passes away while serving on active duty.
How Do I Get Protection under the SCRA?
In order to exercise your benefits under the SCRA, you must request protection during your active military duty or within 30 to 180 days after your active military service ends. In most cases, SCRA protection is not automatic. The active duty service member must take action for the protections under the SCRA to be invoked.
One example would be a reduction of a service member’s credit card interest rate during active duty. Under the SCRA, this may be accomplished by providing a written request to the credit card company along with a copy of the service member’s mobilization orders.
Can SCRA Help With My Bankruptcy?
Yes, there are bankruptcy protections under the SCRA. The SCRA provisions may be applied during a bankruptcy proceeding; these provisions protect a service member’s civil liabilities, rights during legal proceedings and transactions so that they are not put at a disadvantage during times of active duty.
The SCRA can help during bankruptcy proceedings in several ways. If a service member is on active duty, the SCRA can limit what actions can be taken against them. For example, if a creditor is attempting to attach a lien, or financial claim, to property, they may be stopped from doing so while the service member is on active duty.
The SCRA may also extend time frames for bringing claims in bankruptcy court. For example, the Bankruptcy Act provides that a petition may be filed against a debtor within four months after bankruptcy proceedings begin. However, this time frame may be extended for the length of the service member’s active duty. It may also extend time frames for the service member debtor to bring actions in the bankruptcy court.
Do I Need a Lawyer to Get SCRA Benefits?
If you believe you may be eligible for SCRA benefits, it is important to consult with an experienced financial lawyer. An experienced financial lawyer will be able to determine your rights under the SCRA and ensure they are protected. A financial lawyer can also assist you during SCRA bankruptcy proceedings, which may be complex and difficult to navigate. If you have actively defended our country, consult with a financial lawyer to make sure your rights are being protected.