With the real estate market going through a correction service members are also being caught up in the correction and sometimes need assistance. Here is a copy of the Soldiers and Sailors Relief Act which may or may not help depending upon the situation you find yourself in. This information is provided as a service and in no way am I a legal expert. However it may provide a starting point for those of you in need of assistance.
THE U.S. SUPREME COURT ON THE SOLDIER’S AND SAILOR’S CIVIL RELIEF ACT
“TO PROTECT THOSE WHO HAVE BEEN OBLIGED TO DROP THEIR OWN AFFAIRS TO TAKE UP THE BURDENS OF THE NATION” Boone v. Lightner 319 U.S. 561, 575 (1943)
THE SERVICEMEMBERS CIVIL RELIEF ACT OF 2003
SEC 2. PURPOSE.
The purposes of this Act are:
(1) to provide for, strengthen and expedite the national defense through protection extended by this Act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.
The information presented in this brochure gives an overview of SCRA and is not to be considered legal advice.
IT’S IMPORTANT FOR YOU TO KNOW ABOUT THE PROTECTIONS THAT CONGRESS HAS GRANTED YOU AS YOU SERVE THE NATION IN THE GLOBAL WAR ON TERROR.
On December 19, 2003 the President signed into law a completely updated Soldiers and Sailors’ Civil Relief Act of 1940. This law helps ease the economic and legal burdens on military personnel called to active duty status in Operation Iraqi Freedom and Operation Enduring Freedom. SCRA provides certain legal protection for individuals called to active duty. Relief extends to actions terminating leases, evictions, foreclosures, and repossessions, default judgments, lowers interest rates on credit cards and loans and protects against lapses or termination of insurance policies.
Who is protected?
Active duty members of the Army, Navy, Marine Corps, Air Force and Coast Guard including Reserves and National Guard activated under title 10 orders and National Guard activated for training for more than 30 days under 32 USC § 502(f) and commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration.
Also covered are dependents, including your spouse and children and any other person for whom you provided at least 50% support for 180 days prior to applying for relief under SCRA.
SCRA also protects persons whom you may have had co–sign loans and other contracts and prevents courts from enforcing bail bonds if your service precludes your appearance in court.
To what and where does SCRA apply?
Any civil judicial or administrative proceeding in any and all federal, state or local courts whether or not a “court of record” and all administrative agencies, such as motor vehicle administrations, in any state, locality, territory or other political subdivision of the United States. SCRA does not cover criminal matters.
If you can’t make your mortgage payment
SCRA can provide temporary relief from paying a mortgage. You must show that:
• you obtained the mortgage before going on active duty;
• you owned the property prior to entering military service;
• you still own the property; and
• your service materially affects your ability to pay the mortgage.
If you need to break a lease
You may lawfully terminate a lease, including for automobiles, on entering active duty. You must have PCS orders or be activated for a minimum of 90 days (180 days for automobiles). To do this you must show:
• the lease was entered into prior to going on active duty;
• the lease was signed by you or by someone else on your behalf; and
• you are currently on active duty.
If you are being evicted for non–payment of rent
SCRA does not excuse you from paying rent. If you can show that your active duty status materially affects your ability to pay rent for yourself or your dependents, a court MAY stay eviction proceedings, usually for 3 months, if:
• your landlord is attempting to evict you during a period of active duty or after receipt of orders to report;
• the rented premises is being used for housing by your spouse, children or other dependents; and
• your monthly rent is less than $2465 (2004).
If you can’t appear in court or at administrative proceedings
If you have a court date or have an administrative hearing or other proceeding, and can’t appear because you are on active duty, the court or administrative agency MUST postpone the date for a minimum of 90 days if you:
• request a delay in writing;
• explain in your request why your active duty status affects your ability to appear;
• give a date when you can appear; and
• include a letter from your commanding officer stating that you are on active duty and you are not allowed to leave on the scheduled date.
You may request additional delays after the first 90-day delay and if the court denies, an attorney must be appointed to represent you.
Default judgment protection
A default judgment is where you have failed to answer a civil complaint or other legal process (enter an appearance) and a court makes a decision in your absence. If you have a default judgment entered against you while you are on active duty, or 60 days thereafter, you may request to have it set aside if you:
• show that you were prejudiced by not being able to appear; and
• you can show that you have “good and legal” defenses to the claims against you.
You must ask the court to reopen your case within 90 days of release from active duty.
6% Cap on Interest Rates
If you have mortgage, installment or credit card debt and you can show that your active duty materially affects you ability to make payments, you make request that your creditors lower your interest rates to 6 percent. The difference will be permanently forgiven. You must have acquired the debt prior to entering active duty. To request this reduction:
• write a letter to each creditor asking for the reduction under the SCRA;
• state that your military service materially affects to ability to make payments; and
• attach a copy of your activation orders.
If the creditor refuses to lower the interest rate and the matter goes to court, the burden of proof is on the creditor to show that your active duty does not materially affect your ability to make timely payments.
Life insurance premiums
The Department of Veterans Affairs (VA) may guarantee the payment of premiums for certain commercial life insurance policies while you are on active duty and for two years thereafter. You will not be required to pay premiums during that period, and the coverage will remain in force up to $250,000, but you will be required to pay the premiums back within two years.
To learn more about this benefit, see the VA Life Insurance for Veterans and Servicemembers Handbook by visiting:
http://www.insurance.va.gov/
Health insurance
You may have the right to reinstatement of non–employer provided health insurance policies that lapsed while you were on active duty. The insurance must have been in effect prior to you entering active duty and have lapsed during your period of service. To apply for reinstatement under SCRA, write a letter to your insurance carrier and attach a copy of your activation orders.
State income taxes
SCRA prohibits states from taxing your military pay and personal property if your presence in the state is due solely to your active duty. The state is also prohibited from using the pay of the nonresident servicemembers to increase the state income tax of your spouse.
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
Reemployment Rights
You may have rights to resume the job you left when you were activated under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Also, servicemembers who meet eligibility criteria must be treated as if they had been continuously employed for pension purposes, and are entitled to all general across the board pay raises that would have been received if not for absence due to service in the Guard or Reserve. To be eligible, the service member must have given advance notice to the employer of his or her intention to return to a position following service and apply for reemployment in a timely manner. The Department of Labor’s Veterans Employment and Training Service (VETS) administer USSERA. More information can be found at:
www.dol.gov/vets
1-866-4-USA-DOL
HOW TO FIND A LAWYER
Armed Forces legal assistance
Armed Forces legal assistance eligibility is established through 10 USC § 1044 and other legal authorities and provides that legal assistance is subject to the availability of legal staff resources and may provide legal assistance in connection with personal civil legal affairs to active duty servicemembers. To search for an Armed Forces legal assistance office near you visit:
http://assistance.law.af.mil/
Operation Enduring LAMP
The American Bar Association has launched Operation Enduring LAMP (Legal Assistance for Military Personnel). This service may provide free assistance to servicemembers called to active duty. To find out what services are available in your location visit:
http://www.abanet.org/legalservices/
helpreservists/lamphrdirectory.html
Legal Aid Society
The Legal Services Corporation (LSC) is a federal program that funds 207 local legal aid programs dedicated to helping poor Americans gain access to the justice system. To learn more about LSC and locate services near you visit:
www.lsc.gov/fundprog.htm
