This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.


general / Civil Practice

Litigating with service members

Courts from time to time encounter parties to a lawsuit who are on active duty in the armed forces. This article highlights the impact of the Servicemembers Civil Relief Act (50 App. U.S.C. Section 501 et seq.) on civil litigation.

The objective of this article and accompanying self-study test is to review important ways in which the SCRA impacts civil litigation. Readers will learn about the SCRA's general applicability, the SCRA's effect on entry of default judgments, stay of proceedings, statutes of limitation, evictions, foreclosures and contracts.

General Applicability

The SCRA's purpose is to enable service members (SMs) to devote their entire energy to the defense needs of the nation, and to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of SMs during their military service. See 50 App. U.S.C. Section 502. (Unless otherwise specified, all further statutory references are to this code.) "As the U.S. Supreme Court has noted, 'the Act must be read with an eye friendly to those who dropped their affairs to answer their country's call.'" In re Amber M., 184 Cal. App. 4th 1223 (2010).

"The SCRA applies to any judicial proceeding in state court, except criminal proceedings." In re A.R., 170 Cal. App. 4th 733 (2009). In re A.R. held the SCRA even applies to juvenile dependency proceedings. As federal law, it governs over any contrary state law provisions. See U.S. Const. art. VI, cl. 2.

Pursuant to Section 511, covered SMs include: members of the Army, Navy, Air Force, Marine Corps and Coast Guard on active duty (as defined by 10 U.S.C. Section 101(d)(1)); National Guard members called to active duty by the president or secretary of defense for over 30 days under 32 U.S.C. Section 502(f) (national emergency declared by the president and supported by federal funds); and commissioned members of the Public Health Service and the National Oceanographic and Atmospheric Administration

In addition, an SM is also covered for any period of time when he or she is absent from duty due to sickness, wounds, leave or other lawful cause (i.e., still an SM even if absent from active duty for one of the above reasons). Section 511(2)(c).

Default Judgments

When a judgment, order or adverse ruling is sought against a defendant who has not made an appearance, it is the duty of the court to determine whether that party is in the military. Section 521. Since the SCRA does not define what constitutes an "appearance," it appears this is determined by reference to state law. See Code of Civ. Proc. Section 1014.

The SCRA says either side or the court may apply for information as to military service from the Department of Defense, which must issue a statement as to military service. Section 582. The office to contact for information is the Defense Manpower Data Center [Attn: Military Verification] 1600 Wilson Blvd., Suite 400 Arlington, Va., 22209; phone (703) 696-6762 or -5790 / fax (703) 696-4156. See https://www.dmdc.osd.mil/appj/scra.

Before entry of a judgment for the plaintiff, the plaintiff must file an affidavit that states "whether or not the defendant is in military service and showing necessary facts in support of the affidavit," or "if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service." Section 521(b)(1).

If the court cannot determine whether the defendant is in military service, it can require the plaintiff to post a bond as a condition of entry of default judgment. Section 521(b)(3) states: "The bond shall remain in effect until expiration of the time for appeal and setting aside of a judgment under applicable Federal or State law."

If the court finds the defendant is in the military, then it may not enter a default judgment against the SM without appointing an attorney for him or her. Section 521(b)(2). A judgment subject to this section consists of "any judgment, decree, order, or ruling, final or temporary." Section 511(9). It does not refer solely to a final judgment on the merits for the claim or claims for relief involved in the lawsuit.

If the defendant is in military service, the court must stay the proceedings for at least 90 days (upon application of the SM or his attorney, or on the court's own motion) if the court determines that: there may be a defense to the action and a defense cannot be presented without the presence of the SM, or after due diligence, counsel has been unable to contact the SM or otherwise determine if a meritorious defense exists. Section 521(d). "The granting of an additional stay under the SCRA is discretionary, and may be denied by the court if the [SM's] ability to appear and participate in a civil action is not adversely affected by his or her military duties." George P. v. Superior Court, 127 Cal. App. 4th 216 (2005).

If a default judgment has been entered against the SM during his or her period of military service (or within 60 days after the end of it), the court must reopen the judgment to allow the SM to defend if: The SM was materially affected in asserting a defense due to military service, and the SM has a meritorious or legal defense to the action or some part of it, so long as the application is filed within 90 days after the end of military service. Section 521(g).

Stays

An SM who has actual notice of the action and is either a plaintiff or a defendant, and is in military service, or is within 90 days after termination of or release from military service, may also be entitled to a stay. See Section 522(a).

The provisions of Section 522 may be used by an SM "[a]t any stage before final judgment in a civil action or proceeding." Section 522(b)(1). Under this section, "the court may on its own motion and shall, upon application by the [SM], stay the action for a period of not less than 90 days, if [an application for a stay includes]: (A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the [SM]'s ability to appear and stating a date when the [SM] will be available to appear. [And] (B) [a] letter or other communication from the [SM]'s commanding officer stating that the [SM]'s current military duty prevents appearance and that military leave is not authorized for the [SM] at the time of the letter." Section 522(b)(1), (2). Note that In re Amber M. found, "if [an SM's] application ... does not meet the statutory requirements, courts still have discretion to stay the proceedings." In re Amber M. held that under the circumstances presented, even if the application was insufficient, the court abused its discretion in not granting a stay.

In addition, in some situations, an SM is entitled to a stay or the vacation of execution of judgments, attachments and garnishments. Section 524. The procedure is similar to Section 522: "If [an SM], in the opinion of the court, is materially affected by reason of military service in complying with a court judgment or order, the court may on its own motion and shall on application by the [SM] - (1) stay the execution of any judgment or order entered against the [SM]; and (2) vacate or stay an attachment or garnishment of property, money, or debts in the possession of the [SM] or a third party, whether before or after judgment." Section 524(a). The court's power under Section 524 applies to any "action or proceeding commenced in a court against [an SM] before or during the period of the [SM]'s military service or within 90 days after such service terminates." Section 524(b).

Statutes of Limitation

The period of military service may not be included in computing any limitation period for filing suit, either by or against any SM. Section 526(a). Thus, this SCRA section tolls statutes of limitation during the military service of any SM plaintiff, giving him or her more time to file an action, or SM defendant, providing persons more time to bring an action against an SM. Tolling includes suits by or against the heirs, executors, administrators, or assigns of the member, when the claim accrues before or during the period of service. Section 526(a).

Tolling occurs automatically, with no need to request that it occur. See Syzemore v. County of Sacramento, 55 Cal. App. 3d 517 (1976). It is important to note that it is only the period during an SM's active military service that is tolled, "[o]nce [an SM] is released from active duty, the tolling provision of [Section 526] ceases to operate." Dean v. United States, 92 Fed.Cl. 133 (2010). The statute of limitations starts to run again on the first day the SM leaves active duty. Hamner v. BMY Combat Systems, 874 F.Supp. 322 (D. Kan. 1995). Also, the statute does not affect time periods within a suit, such as time periods to avoid motions to dismiss for failure to prosecute an action. See Zitomer v. Holdsworth, 449 F.2d 724 (3rd Cir. 1971).

Eviction, Foreclosure, Contracts

The SCRA bars evictions without a court order from premises occupied by SMs for which the monthly rent does not exceed a specified amount. Section531(a)(1). The amount is adjusted yearly (Section 531(a)(2)(A)), and for 2015, the maximum monthly rental amount is listed as $3,329.84 (see "Publication of Housing Price Inflation Adjustment Under United States Code," 80 Fed. Reg. 18 (Jan. 28, 2015). The provision prohibits eviction without a court order of an SM, "or the dependents of [an SM], during a period of military service of the [SM], from premises ... that are occupied or intended to be occupied primarily as a residence." Section 531(a)(1)(A).

Under this provision, "[u]pon an application for eviction or distress with respect to premises covered by this section, the court may on its own motion and shall, if a request is made by or on behalf of [an SM] whose ability to pay the agreed rent is materially affected by military service ... stay the proceedings for a period of 90 days, unless in the opinion of the court, justice and equity require a longer or shorter period of time." Section 531(b)(1).

Further, the SCRA protects SMs against foreclosures of mortgages, deeds of trust, and similar security devices. Several conditions must be satisfied for relief to be available: The relief is sought on an obligation secured by a mortgage, deed of trust, or similar security on either real or personal property; the obligation originated prior to entry upon active duty; the property was owned by the SM or a dependent before entry on active duty status; the property is still owned by the SM or dependent at the time that relief is sought; the ability to meet the financial obligation is materially affected by the SM's military service; and the action is filed during, or within 90 days after, the SM's period of military service. See Section 533. Courts can stay proceedings until SMs are available to answer, extend the mortgage maturity date to allow reduced monthly payments, grant foreclosure subject to being reopened if challenged by an SM, and extend the period of redemption by a period equal to the SM's military service. Section 533.

Lastly, SMs who signed an installment contract for the purchase of real or personal property, including cars, before active duty will be protected if their ability to make the payments is materially affected due to their active duty service. See Section 532. The SM must have paid, before entry into active duty, a deposit or installment payment under the contract. Section 532(a)(2). The vendor is thereafter prohibited from exercising any right or option under the contract, such as to rescind or terminate the contract or to repossess the property, unless authorized by a court order. Section 532(a)(1)(B). The court "may order repayment to the [SM] of all or part of the prior installments or deposits as a condition of terminating the contract and resuming possession of the property," and must stay the proceedings "for a period of time as, in the opinion of the court, justice and equity require," when on its own motion or that of the SM, the court determines the SM's "ability to comply with the contract is materially affected by military service." Section 532(c)(1-2). Separate sections cover termination of motor vehicle leases, telephone contracts, and enforcement of storage liens. See Sections 535, 535(a) and 537.

Mark E. Sullivan is a retired Army Reserve JAG colonel, a board-certified specialist in family law and a fellow of the American Academy of Matrimonial Lawyers who practices in Raleigh, N.C. The chairman of the Military Committee of the ABA Family Law Section, Sullivan is the author of "The Military Divorce Handbook" (ABA 2006). Comments or questions should be sent to: mark.sullivan@ncfamilylaw.com.

#202

Ben Armistead


Related Tests for Civil practice

general/Civil Practice

Mandatory court reporters for indigent litigants

By Jens B. Koepke

general/Civil Practice

California anti-SLAPP in the 9th Circuit: Can it survive?

By Gary A. Watt

general/Civil Practice

Private attorney general attorney fees

By Matthew Ross

general/Civil Practice

Overview of California depositions

By Patricia M. Lucas, Gary Nadler

general/Civil Practice

Anti-SLAPP motions and attorney fees

By Matthew Ross

general/Civil Practice

Character evidence in civil cases

By Elia V. Pirozzi

general/Civil Practice

Limits on garnishment of low income debtors

By Thomas D. Long