The Servicemembers Civil Relief Act (SCRA) states that it is generally applicable to any action or proceeding commenced in any court. Therefore, the provisions of the SCRA are applicable to proceedings before the bankruptcy court.
Yes, the SCRA has provisions that can be applied during your bankruptcy proceeding. The purpose of the SCRA is to ensure that certain civil liabilities, legal proceedings, and transactions which may put you at a disadvantage and affect your civil rights be temporarily suspended while you are in active duty.
In terms of bankruptcy, the SCRA can:
Yes, the SCRA can provide you with many other benefits which can affect civil court cases, insurance, eviction and many other areas of your life. Some of these benefits are outlined below.
Usually when a defendant is in default for failure to appear in court, the plaintiff must file an affidavit with the court before a default judgment may be entered. The affidavit must state whether the defendant is in the military. The court may not order entry of judgment against you (defendant), if you are in the military until after the court appoints an attorney to represent you. Either your attorney or the court can request a stay of proceedings for no less than 90 days if they determine that:
If a default judgment is entered against you during your active duty service, or within 60 days after your active duty service has ended, the SCRA allows you to reopen that default judgment and set it aside. To set aside a default judgment, you must show that you were disadvantaged by not being able to appear in person, and that you have good, legal defenses to the claims against you.
If you have notice that you are to appear in a court or administrative proceeding but you who are unable to appear due to military duties, you can request that the proceeding be postponed. The proceeding can be postponed for a mandatory minimum of ninety days. Your request must be in writing and must:
Further delays may be granted at the discretion of the court, and if the court denies additional delays, an attorney must be appointed to represent you.
The SCRA allows you to terminate leases if, after you signed the lease you receive orders for a permanent change of station (PCS) or a deployment for a period of 90 days or more. The SCRA will allow you to terminate leases for automobiles for personal or business use by you and your dependents. The pre-service automobile lease may be cancelled if you receive active duty orders for a period of 180 days or more. The automobile lease entered into while the servicemember is on active duty may be terminated if the servicemember receives PCS orders to a location outside the continental United States or deployment orders for a period of 180 days or more.
The SCRA gives you the ability to reduce the interest rates on some of your loans and mortgage interest rates to 6% under certain circumstances, if you incurred this debt before you started active duty.
You may be eligible for the 6% interest rate if:
If you are filing bankruptcy and you are a member of the military, you should consult an experienced bankruptcy attorney so that your rights under the SCRA will be protected. The SCRA can be quite a complicated piece of legislature, but it contains benefits that may be vital to your case. A bankruptcy attorney will understand these benefits and ensure that you take advantage of them. If you are not filing for bankruptcy, an attorney will be able to determine which other benefits you are eligible for.
Last Modified: 11-25-2013 02:49 PM PSTLaw Library Disclaimer
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