A Summary of Laws that Protect Service People Called to Active Duty

PrintPrint   EmailEmail   

Author: David Yen, LAF
Last updated: April 2007

The Servicemembers' Civil Relief Act (SCRA) and The Soldiers' and Sailors' Civil Relief Act (SSCRA)

We will have clients who enlist or are called up for active duty, or who are affected when a spouse or parent enters military service.  The Servicemembers' Civil Relief Act, (SCRA), which was signed into law December 19, 2003, (Pub. L. No. 108-189 (2003)), suspends or modifies various civil liabilities of persons in military service, and provides extensive protections to active duty members of the armed forces.

This law is a complete revision of The Soldiers' and Sailors' Civil Relief Act of 1940, as amended (50 U.S.C. App. § 501 et seq.) The information below is a brief summary of the provisions of both Acts.

The coverage granted by this Act also extends to members of the National Guard serving more than 30 consecutive days (who are responding to a national emergency declared by the president and supported by federal funds).

Summary of Relevant Provisions in the SCRA and SSCRA

Legal Proceedings

Court proceedings are halted. Under the SCRA, a servicemember is granted an automatic stay of court proceedings (including administrative proceedings) for at least 90 days upon the servicemember's written request. (§ 202(b)(1)). This is a departure from the SSCRA, which left the initial decision to grant a stay to the discretion of the court.

The request must:

  • Explain why the current military duty affects the party's ability to appear;
  • Provide a date when they are able to appear; and
  • Include a letter from the servicemember's commanding officer stating that the servicemember's duties preclude her appearance and that she is not authorized to leave at the time of the hearing. (§ 202(b)(2)).

The request for a stay by the servicemember does not constitute an appearance. Section 202(c) of the SCRA makes it clear that a request for a stay "does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense".

The court must appoint counsel to represent the servicemember if the court denies requests for additional stays. Servicemembers who remain unable to appear may use similar procedures to request further stays at the discretion of the court. (§ 202(d)(1)). In a new requirement under the SCRA, the court must appoint counsel to represent the servicemember if the court denies the request for an additional stay. (§ 202(d)(2)).

Under the SCRA, a servicemember's legal representative can take the same actions as a servicemember. Section 109 of the SCRA adds a provision concerning a legal representative of the servicemember. A legal representative is defined as either "[a]n attorney acting on behalf of a servicemember" or "[a]n individual possessing a power of attorney." Under either definition, the active duty servicemember's legal representative may take the same actions as the servicemember. (§ 109(b)).

Section 201 of the SCRA establishes requirements that must be met before a court can enter a default judgment. The court must grant a stay for at least 90 days upon request of the court appointed attorney if there may be a defense which cannot be presented in the absence of the servicemember, or the attorney has been unable to contact the servicemember to determine the existence of a defense. (§ 202(d)).
Note: this stay procedure is unrelated to the new required stay procedures where the servicemember has received actual notice of the proceedings and requests a stay.

[An important provision of the SSCRA which remains in effect is that a non-service member who is a co-debtor or cosigner and is being sued on a debt may receive the same relief as the servicemember, within the discretion of the court. (50 U.S.C. App. § 513)]

Financial and Contractual Obligations

Creditors can only charge 6 percent interest. A cap is placed on interest rates that creditors can charge servicemembers: If a civilian enlists or a reservist is called to active duty, and suffers a loss of income that causes hardship in paying preexisting debts, the interest rate that creditors may charge is capped at 6%. (50 U.S.C. App. § 521 (2000)).

Note: In order to take advantage of this provision, the servicemember must make a written request to reduce the interest rate to 6% and include a copy of her applicable active duty orders. Once the creditor receives notice, relief must be granted, effective as of the date the servicemember is called to active duty. (§ 207(b)(1)). The creditor can try to avoid reducing the interest rate only if it can convince a court that the military service has not materially affected the servicemember's ability to pay. (§ 207(c)).  

The SCRA makes it clear that this interest rate reduction is not a deferment of interest.  The creditor must forgive any interest in excess of six percent, and the monthly minimum payments due must reflect the lowered interest rate. (§ 207(a)(2) & (3)).

Protection from eviction. A landlord may not evict the spouse, children (or other dependents) of a person in active military service for non payment of rent if the rent is less than $2465 a month, unless the landlord petitions the court, and gets a court order to grant the eviction. (§ 301(a)(1)(A)(ii)).

Note: The SCRA provides a formula to calculate the rent ceiling for subsequent years. (§ 301(a)(2)).

Release from residential leases without penalty. Preexisting residential leases can be terminated without penalty by a tenant who decides to enter military service; or a servicemember who receives orders for a permanent change of station (PCS); or a servicemember who is deployed for a period of 90 days or more. (§ 305(b)(1)(A) & (B)).

The tenant must give at least 30 days notice. (§ 3).

Release from car leases without penalty. Preexisting automobile leases (for either personal or business use) can be terminated without penalty where a civilian enlists in the military and is called for active duty for a period of 180 days or more. (§ 305(b)(2)(A)). Also, if an active duty servicemember receives PCS orders to a location outside the continental United States, or deployment orders for a period of 180 days or more, the servicemember (or their spouse or dependents) may terminate any current automobile leases entered into while the servicemember has been on active duty. (§ 305(b)(2)(B)). 

Deferment of life insurance premiums can be requested to alleviate financial pressure. Servicemembers can request deferments of certain commercial life insurance premiums. The deferment period includes the term of military service and continues up to two years after service in the military has ended. This deferment must be requested by the servicemember and must be approved by the Department of Veterans' Affairs. The insurance premiums will be guaranteed by the government, and the servicemember has up to two years after they have left the military to repay the missed premiums (including interest). (50 U.S.C. App. §§ 540-547 (2000)). Under the SCRA, life insurance policies up to $250,000 (or the maximum limit of the servicemembers' group life insurance) are eligible for this deferment. (§ 402(c)).

Professional malpractice insurance (including coverage for legal services) may be suspended during active duty. Under the previous Act (SSCRA), individuals with pre-military service professional malpractice insurance were allowed to request suspension of coverage during the period of their active military service. Under this provision, the insurance provider cannot charge premiums during the period of suspension, and must reinstate the policy upon the request of the professional. The SCRA modifies the definition of a "professional" to include those who provide legal services. This revision eliminates the need for a secretarial determination that legal services are considered "professional services" subject to the provision, and streamlines the process of suspending the insurance coverage. (§ 703(a)(2)(A)).

Taxes

Military pay for non residents is no longer taxable in the non resident state. States can no longer consider the military pay of non resident servicemembers as taxable income when figuring the state income tax of the non resident servicemember or spouse. (§ 511(d)). Section 511 also contains a new provision that clarifies that the protections of this section extend to servicemembers who are legal residents of a federal Indian reservation. (§ 511(e)). This provision is automatic.

The statute of limitations to redeem real property from tax sales is tolled. Under the previous Act, (SSCRA) which is still in effect, the statute of limitations to redeem real property from tax sales is tolled while the servicemember is in active service. (50 U.S.C. App. § 525). This provision is automatic.

Note: If property is transferred to take advantage of the Act's provisions, the court may refuse to apply the Act. (50 U.S.C. App. § 580).

Illinois has a narrower provision in the property tax code which applies only to reservists called to active duty outside the continental United States.  35 ILCS 200/21-20 and 21-25

General Provisions

Most provisions require the servicemember to ask for relief or prove prejudice by reason of military service.

A written waiver of rights under the Act signed during or after the period of military service will be enforced.  A servicemember should be very careful in signing any documents related to financial matters after enlisting or receiving notice that he or she is being called up.

While the military should notify the person entering military service of the benefits of the Act, (50 U.S.C. App. § 515), there is no requirement that anyone in the government notify the family members. This Act is something that attorneys should be alert to when assisting family members affected when a spouse or parent enters or re-enters military service.

Additional Information Pertaining to Servicemembers

Note that as the SCRA has just been enacted, some of the links presented may not have been updated yet, but may still be informative.

Legal Assistance for Military Personnel

Also helpful is information posted by the American Bar Association's LAMP (Legal Assistance for Military Personnel) about resources for military personnel and the attorneys who help them. Go to Help Reservists.  There you will find information about how attorneys might most help those called to active duty. Also provided are Questions and Answers about Key Laws including:

  • Information on Soldiers' & Sailors' Civil Relief Act (SSCRA)
  • Judges' Guide to the Soldiers' and Sailors' Civil Relief Act
  • Information on Uniformed Services Employment and Reemployment Rights Act (USERRA)
  • Navy Quick Reference to USERRA
  • Information on Servicemen's Group Life Insurance (SGLI)

To volunteer to help JAG officers serve the needs of recently mobilized military personnel, Illinois attorneys can sign up at http://www.isba.org/volunteer.htm.

Financial Information

The IRS offers special tax information for military families at its website.  Armed Forces Tax Benefits highlights special tax provisions that apply to those in combat or deployed overseas away from permanent duty stations. Qualifying military personnel can get extensions for filing and paying taxes and some military pay may be excluded from taxation. 

Guarding the Home Front for the Citizen Soldier. Another helpful resource is The Legal Face of War: Guarding the Home Front for the Citizen-Soldier, an online issue of GPSolo magazine created by the American Bar Association's General Practice, Solo and Small Firm Section. This issue includes information about student loan relief, the Soldiers' and Sailors' Civil Relief Act, reemployment rights of reservists, estate planning for the military, and survivor benefits.

Resources for Families of Servicemembers

Nutrition program benefits for reservists. Emergency food providers from around the country are reporting a surge in demand from the families of reservists. Families of reservists often experience sharp drops in income for many months--although reservists receive military pay, they typically lose their civilian pay while serving. The Food Research and Action Center has published information on various sources of nutrition assistance for which reservists and their families may be eligible.

General guidance for administers of project-based assisted housing. HUD encourages owners and management agents to be as lenient as responsibly possible to support affected households when persons are called to active duty in the Armed Forces. Here is the general guidance to owners and management agents who administer project-based assisted contracts (Section 8, Rent Supplement, Rental Assistance Payments (RAP), Project Assistance Contracts (PAC), and Project Rental Assistance Contract (PRAC)) and/or mortgage-based projects (Section 236 and 221(d)(3) Below Market Interest Rate (BMIR)) for continuing assistance to persons called to active military duty (including reservists and guardsmen).

More information about the Soldiers and Sailors Civil Relief Act
More information about the Servicemembers Civil Relief Act

Printed from: www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_content&contentID=152

Feedback

We welcome your comments and suggestions