Servicemembers Civil Relief Act--Check list

Having been appointed to represent servicemembers on numerous occasions, I have come up with a check list relevant to this small portion of the Servicembers’ Civil Relief Act.

A DEFAULT JUDGMENT IS PROPOSED

(SCRA--50 U.S.C. App.§520)**

Memo to provide for the Court

                                                                                                                         Yes   No

Does the action involve an Active Duty Service Member?                                  o          o

            Definition  "persons in the military service"

            50 U.S.C. App. § 511

1.    Those members of the Army, Navy, Air Force, Marine Corps and Coast Guard on active duty under 10 U.S. C. 101(d)(1);

2.    Members of the National Guard who are called to active duty as authorized by the President or the Secretary of Defense for over 30 consecutive days under 32 U.S.C. 502)f) to respond to a national emergency declared by the President and supported by federal funds…

                                                                                    If No, then no coverage under SCRA

                                                                                                If Yes, then:

Has the service member divested himself/herself by

reason of misconduct?                                                                                       o         o

            Mantz v Mantz, 69 NE 2d 637 (Ohio C.P. 1946)

                                                                                                If Yes, then no coverage under SSCRA

                                                                                                If No, then:

Is it a civil matter?                                                                                              o         o

                                                                                                If No, then no coverage under SSCRA

                                                                                                If Yes, then:

Has the service member appeared in the proceedings?                                       o         o

            See Note 1 below

            50 USC App.§521 governs when the service member

            has not made an appearance in the action.

-  no default can be entered until the court

appoints an attorney to represent the servicemember

-  if the appointed cannot locate the servicemember, the

appointed attorney cannot waive any rights of the

servicemember.

-  if the appointed attorney finds the servicemember then

the court must decide whether to stay the proceedings

(i)            the court shall stay the proceedings for at least 90 days

if (a) there is a defense to the action and a defense cannot

be presented without the servicemember, or (b) a meritous

defense exists.

            50 USC App §522 governs any civil proceedings in which the defendant has received notice of the action.

-  At any stage of the proceedings, the court can on its own motion and shall upon application by the servicemember stay the action for a period not less than 90 days if –

      -- A letter for communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember’s ability to appear and state a date when he/she can  be available

       -- A letter or other communication from the servicemember’s commanding officer stating that the servicemembers’s current military duty prevents appearance and military leave is not authorized.

                                                -- Additional stays are not mandatory.  The procedure is similar to 50 USC App §522, i.e. communication from servicemember and communication from commander.  If the court does not grant the additional stay, it must appoint counsel to represent the servicemember in the action or proceedings.  50 USC App §522(d)

                                                See Note 2 & 3 concerning stay of proceedings

                                                -- If the court refuses an additional stay, then the court must appoint an attorney to represent the servicemember in the action or proceedings 50 U.S.C. § 522(d)(2).

                                                -- Who pays the appointed attorney?  The Act is silent on the issue.

            Maximum duration of any stay is period of service

            plus ninety (90) days

           

___________________________________

Things to consider:

1.      It appears that any act before the Court by a defendant servicemember, or the defendant’s attorney may constitute an appearance depriving the servicemember of the benefits of section 520. Blankenship v. Blankenship, 82 So. 2d 335, defendant’s counsel filed an affidavit asking the court to quash the complaint or continue the cause.  Reynolds vs Reynolds, 134 P.2d 251, the defendant’s counsel filed a motion to dismiss for lack of jurisdiction.  Vara v Vara, 171 N.E. 2d 384(1961), the defendant filed a motion to quash service.  In each of these cases the court held that the service member made an appearance.  NOTE THAT ALL OF THESE ARE CASES DECIDED UNDER THE OLD LAW)

a.     Bear in mind, that when the case talk about an attorney for the servicemember, it would normally not be one appointed under the SCRA, Rutherford v Bentz, 104 N.E. 2d 343(1951) 50 U.S.C. § 520.

b.     If the servicemember writes a letter to the Court or sends a telegram asking for protection under the Act.  Such informal communication should not be classified as an ‘appearance’ by the Court.  This was true even under the old law, see Rutherford v.Bentz, 104 N.E. 2d. 343 (1952)

                        2.     Westfall vs Westfall, (unpublished decision) A06-2293, April 15,2008.  The district court found three deficiencies in husband’s application: husband failed to state the manner in which his military-duty requirements materially affected his ability to appear, husband failed to submit a letter or communication from his commanding officer, and the letters the husband submitted failed to state that military leave was not authorized for husband.

                        3.     What type of proceedings are taking place?  Is it an original determination of paternity, child support etc. or is it a modification of existing child support.

                                                a.             Consider Jackson v. Jackson, 403 N.W.2n. 248 (Minn. App. 1987) – (modification action) Court determined state law does not require obligator’s presence –can appear by affidavit, i.e. no material affect, versus Smith v. Davis, 364 SE 2d. 156 (1988) – (establishment ) court held reversible error to proceed with the trial without the servicemember, child support action.

                                ** The Servicemembers Civil Relief Act  was originally created in the 1940s.  It purpose was to allow  a servicemember the ability to devote “their entire energy to the defense of the nation’.  It did that in part by temporary suspending judicial and administrative proceedings that may adversely affect the civil rights of the serivcemember while serving his county.

                                                The Act was originally titled as the “The Soldiers’ and Sailors’ Civil Relief Act of 1940” by case law it also cover the air force.  As a result of problems that arose with Desert Storm, in 2003 the Act went under a comprehensive overhaul.  Congress for three years in a row amended the civil relief protections available to servicemembers.  The current version 50 U.S.C.A. §§ 501-596.  There were also changes to the Uniformed Services Employment and Reemployment Rights Act.  The changes in the law, re-titled the act as The Servicemembers Civil Relief Act (SCRA).

This article is to be considered as comments by the author and not to be presumed or considered as legal advise.  As with any legal matters that affects you, you should consult an attorney before acting.