Servicemen's Civil Relief Act (SCRA)
THIS IS A SUMMARY OF LAW AND IS PROVIDED TO YOU AS GENERALLY GOOD ADVICE. IF YOU HAVE MATTERS RELATING TO THIS OR OTHER LEGAL SUBJECTS, BUT ARE NOT AN ATTORNEY, WE ADVISE YOU TO CONSULT WITH ONE.
Active duty members of the Armed Forces have special rights under the Servicemen's Civil Relief Act of 1940 (SCRA). The SCRA can be used to postpone certain civil obligations when the military member is materially affected by their service. The SCRA applies to many different circumstances, with different requirements in each area. This fact sheet is designed to give a general overview of the SCRA. Be sure to talk to a legal assistance attorney about your specific situation.
Default Judgments: A default judgment in a lawsuit is like a forfeit. If you are sued, and you dont show up in court, you could lose by default. If you are ever sued while on active duty, the SCRA gives you certain protections against losing by default. These protections include:
Before a court enters a default judgment, the plaintiff (the person suing you) has to file an affidavit telling the court about the defendants (your) military status. If the plaintiff doesnt file this affidavit, any default judgment entered in the case can be thrown out. Knowingly filing a false affidavit is a crime.
If the court determines that the defendant is in the military and hasnt made an appearance (either in person or through their own lawyer), the court must appoint an attorney to represent the defendant for a limited purpose. The court-appointed attorneys only purpose is to postpone the proceedings and get in touch with the defendant. If the attorney takes any other actions, or makes decisions on your behalf, they are not binding.
If a default judgment is entered against a military defendant, the defendant may petition the court to reopen the case. To reopen a case, the defendant must show: 1) they were materially affected in presenting a defense; and 2) they have a meritorious defense to the lawsuit.
Stay of Proceedings: Where military service prevents a plaintiff or defendant from asserting or protecting a legal right, the SCRA permits a delay, also called a "stay," of civil court proceedings. The SCRA does not give any protection in administrative and criminal matters. Consider the following factors:
The stay request may be made at any stage of the court proceeding, as long as it is made during military service or within 60 days thereafter.
The maximum duration of the stay is the period of active duty service plus three months. Courts often grant shorter stays.
To obtain a stay, the key requirement is to show that military service has a material affect on your ability to prepare for and attend court. Factors used to determine material effect include geographic and economic challenges, amount of available leave, and specific duty requirements.
Statutes of Limitations: Normally, once the statute of limitations runs on a civil action, a potential plaintiff can no longer sue, and the intended defendant can no longer be sued. However, if military service prevents filing or defending a suit, the statute of limitations is stayed during periods of active duty. Thus, if a military defendant successfully postpones a suit for two years, the running of the statute of limitations is also postponed during that time.
Landlord / Tenant
The SCRA also applies to rental agreements.
Eviction: If a military member is unable to pay rent due to military service, the SCRA may protect the member from eviction. The following requirements must be met:
- The eviction must be attempted during military service.
- The premises must be occupied as a dwelling, not a business.
- The monthly rent must not exceed $1200.
- The ability to pay must be materially affected by military service.
If all of the above requirements are met, the court may stay the eviction for up to three months and provide other "just" relief.
Terminating A Lease: Under the SCRA, a new military member can terminate a lease for a private dwelling if it was rented before entering military service. Written notice of the termination must be provided after entering active duty or receiving orders. The effective date of termination for month-to-month rentals is 30 days after the next rental payment is due after the notice of termination is delivered. The effective date of termination for all other leases is the last day of the month following the month the notice of termination is delivered.
If you had interest-bearing debts before entering active duty, you may be able to reduce the interest rate to six percent. A pre-military creditor is required to reduce your interest rate to six percent upon receipt of written notice that the debtor has entered active duty military service. To return to the previous higher interest rate, the creditor must petition the court and prove that entering active duty did not materially affect the debtor. Courts normally compare the debtor's pre-service and service income to determine material effect in this instance. If the debtor is making equal or more money after entering active duty, the reduction to six percent interest will not likely apply.
The SCRA has too many applications to include on this fact sheet. As a general rule, if you feel your military service materially affects you in a civil matter, contact an attorney to determine whether the SCRA can help you.