Transcript www.illinoisprobono.org

The Servicemembers Civil Relief Act
(SCRA)
Legal Issues and Military Service
PRESENTED BY:
Captain Daniel Papajcik
Trial Counsel / Administrative Law Attorney
U.S. Military Entrance Processing Command
Margaret Thomas (Captain, USA-IRR)
Office of Illinois Attorney General Lisa Madigan
Asst. Bureau Chief, Veterans Rights Bureau
John F. Costello, Jr.
Veterans Legal Support Center & Clinic, The John Marshall Law School
Veterans’ Rights Project, Legal Assistance Foundation
June 18, 2008
SPONSORED BY:
Chicago Volunteer Legal Services (CVLS)
Objectives of Presentation
• Overview of Statutory Benefits and
Protections available to
Servicemembers (SMs) and their
families under the Servicemembers
Civil Relief Act (SCRA) and Illinois law;
and
• Recruit you to help…
Outline of Presentation
• OVERVIEW of SCRA benefits and protections
• FOCUS on 50 U.S.C. App. §§ 521 and 522 (stay
of proceedings)
• FORMS to be used in support of application for
stay
• HOW TO CONTACT servicemember (SM)
• WAR STORIES - discussion of specific
situations
• DISCUSSION of Circuit Court of Cook County
and CVLS initiative
SCRA Overview
• SCRA provides various legal and financial
protections to qualified “servicemember(s),” as
defined in 50 U.S.C. App. § 511
• Liberal Construction
“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)
• Used as Shield and Not as Sword
“Although the Act should be read liberally and afford generous protection to
the Service member, the protection does have its limits.”
Le Maistre v. Leffers, 333 U.S. 1, 6 (1948)
SCRA Overview
Codified at 50 U.S.C. App. §§ 501-596
• Title I - General Provisions (§§511-519)
– Persons protected
– Non-discrimination provision - §518
• Title II - General Relief (§§521-527)
– Default judgments and stays - §§521, 522, 524, 525
– Statutes of Limitation - §526
– Maximum rate of interest - §527
• Title III (§§531-538)
– Major substantive protections against evictions, termination of installment
contracts, foreclosure on mortgages and termination of leases by lessees,
protection to dependants
•
•
•
•
Title IV - Life Insurance (§§541-549)
Title V - Taxes and Public Lands (§§561-571)
Title VI - Administrative Remedies (§§581-583)
Title VII - Further Relief (§§591-596)
SCRA Overview
• WHAT:
–
–
–
–
Suspend Statutes of Limitation
Cap Interest Rates at 6%
Permit Lease Terminations
Protections from Eviction and Mortgage
Foreclosure
– Stay of Proceedings
– Protections from Default Judgments
SCRA Overview
• WHO:
– Active Duty Military - YES
• Army, Navy, Air Force, Marines, Coast Guard
– Reserves – MAYBE
• if on “active duty” under Title 10 orders
– National Guard –MAYBE
• if on “active duty” under Title 10 orders
• if under Title 32 Federal orders (ex. Hurricane Katrina response)
– Dependents – MAYBE (limited circumstances)
• SM’s spouse or child
• Person that SM provided more than 1/2 support for 180 days preceding
application for relief under SCRA
– Third Parties – POSSIBLY (limited circumstances)
• If court grants relief (stay, postponement, suspension of obligation) to SM,
the relief may also be granted to persons primarily or secondarily liable with the
SM, (50 U.S.C. App. §513)
SCRA Overview
• WHEN:
– Protections Begin …
• Entry on “active duty”
• Receipt of active duty orders for reserve components
– Allows time to get “house in order” (§516)
– Protections End …
• Release date from “active duty”
– Exceptions:
» Stays: May file application within 90 days after release
» Default Judgments: May file application to set aside
default judgment no later than 90 after release
SCRA Overview
• WHY:
– To enable servicemembers to devote themselves to
their missions
• Battlemind concept
– Eliminate / mitigate civil legal and financial issues can hinder
Military Preparedness, Moral, Retention / Recruiting
– Illinois Army National Guard is deploying 33d
Infantry Brigade Combat Team (@2,700 soldiers) to
Afghanistan in support of OEF
• Deploying over summer and fall
• Largest deployment in Illinois since WWII
SCRA Benefits and Protections
Tolling Statutes of Limitation
• Period of military service “may not be included in
computing any period limited by law, regulation, or
order for the bringing of any action or proceeding
… by or against servicemember or the
servicemember’s heirs, executors, administrators, or
assigns.”
Six Percent Rule
• A SM may reduce pre-service consumer debt and mortgage
interest rates to 6% under certain circumstances
– Any interest above 6% is permanently forgiven
• Interest above 6% cannot accrue or become due after service
• Military service has to have materially affected the SM’s
ability to pay pre-service debts
– Finance company has the burden of proof to prove that the SM is not
materially affected by military service
Six Percent Rule
• SM must inform finance company of situation in writing and
provide a copy of orders
– If orders are not readily available at time request is made to creditor,
SM has 180 days after release from active duty to provide copy of orders
• The term interest includes service charges, renewal charges,
fees, or any other charges with respect to an obligation or
liability
Termination of Residential Leases
• Allows termination of lease (dwelling,
professional, business, agricultural, or similar) by
active duty SMs
• Applies to
– All pre-service leases
– Leases executed on active duty, if SM subsequently
receive orders for a permanent change of duty or
deployment for 90 days or more
Termination of Residential Leases
• SM’s dependent is entitled to protection
under this provision if they are materially
affected by the SM’s military service
– Landlords cannot hold dependents liable on
joint lease
Termination of Automobile Leases
• Allows termination of lease for personal or business use by
SM or dependent
• Must provide written notice, copy of orders, and surrender
automobile within 15 days of notice
• Applies to
– All pre-service leases if entering active duty for more than 180 days
– Leases executed on active duty, if SM subsequently receive orders
for a permanent change of duty out of continental US or deployment
for 180 days or more
Mortgage and Lien Rights
• If a SM is obligated on real or personal property
secured by lien, mortgage, etc., and the obligation
originated before the period of active duty, a court
must stay the proceeding for an equitable period
• To invoke this SM must be materially affected by
military service and file an application during or
within 90 days after active duty
• Sale, foreclosure, or seizure of secured property for
a breach is not valid if made within 90 days after
active duty period, unless a court order was
granted
Protection Against Default Judgments
• Court is obligated, before entry of default judgment, to
require plaintiff to file an affidavit stating whether or not
defendant is in military service, or unable to determine
• Court may not enter default judgment until attorney is
appointed to represent defendant
– If attorney cannot contact SM, then “actions by the attorney … shall not
waive any defense of the servicemember or otherwise bind the
servicemember”
– Court can require posting of bond as condition of default judgment
• If a default judgment is entered, then Court shall reopen the
judgment upon application of SM showing ability to appear
materially affected by military service and meritorious defense
– Must seek to vacate default within 90 days after release from active
duty
• Protections for bona fide purchaser for value
SCRA Waiver
• SM may waive SCRA protections (50
U.S.C. App. §517)
– Waiver must be in writing
– Waiver must be made during or after period
of service
SCRA Stay of Proceedings
SCRA Stay of Proceedings
• SCRA applies to all courts &
administrative agencies – federal, state
and local -- ALL MEANS ALL
• SCRA applies to civil cases only
– SCRA and ADR?
• likely discretionary
SCRA Stay of Proceedings
• SM entitled to protections of the SCRA
as either plaintiffs or defendants
• SM must request SCRA protection
SCRA Stay of Proceedings
• Where SM Does NOT Have Notice of the proceeding…
• Court cannot enter any judgment until its appoints
attorney for SM
– If attorney cannot locate SM, “actions by the attorney … shall
not waive any defense of the servicemember or otherwise bind
the servicemember,” (§521(b)(2))
• “…Court shall grant a stay of proceedings for a
minimum of 90 days… upon application of counsel or
on the court’s own motion…” if Court determines:
– SM has defense to action
– SM cannot be contacted
SCRA Stay of Proceedings
• Where SM Has Notice of the proceeding…
• Proper Request must be
– In writing
– Contents
• Letter / communication stating necessary facts on (1) how military
service materially affects SM’s ability to appear and (2) when SM
will be available to appear
• Letter / communication from commanding officer (CO)
• Upon receiving proper request, stay is MANDATORY
for a minimum of 90 days
– Court can also grant stay sua sponte, (§522(b)(1))
• Additional stay can be granted and is within
DISCRETION of judge, magistrate, hearing officer, etc.
SCRA Stay of Proceedings
• LEGAL REPRESENTATIVES
• SCRA adds a provision recognizing a legal
representative of the SM as:
– An attorney acting on the behalf of a SM; or
– An individual possessing a power of attorney
• Legal representative can take the same actions as a SM
• Application for stay “does not constitute an appearance
for jurisdictional purposes and does not constitute a
waiver of any substantive or procedural defense,”
(§522(b)(2))
SCRA Stay of Proceedings
• If assisting SM to invoke SCRA rights and have no
intention of being attorney of record, then be certain to
state that you are not attorney of record and actions are
not to count as appearance for jurisdiction over SM
How to Contact SM
• DoD database
– Department of Defense (DoD) hyperlink can be used to quickly check if
an individual is in active duty military service,
https://www.dmdc.osd.mil/scra/owa/home.
• Required information includes: last name and Social Security number.
– A statement of military service can also be
requested via:
Defense Manpower Data Center
(Attn: Military Verification)
1600 Wilson Blvd., Suite 400
Arlington, VA 22209-2593
703.696.6762 telephone
703.696.4156 facsimile
• Joint Legal Assistance Website of the Armed Services
– http://legalassistance.law.af.mil/
How to Contact SM
Army Active Duty:
Army Worldwide Locator
USAEREC
8899 E. 56th Street
Indianapolis, IN 46249
http://www.erec.army.mil/wwl/
Navy:
Navy Personnel Command
(PERS 312)
5720 Integrity Drive
Millington, TN 38055-3120
(901) 874-3388
Marine Corps:
Headquarters, USMC
Code MMSB-17
2008 Elliot Road, Room 201
Quantico, VA 22134-5030
(703) 784-3942
www.usmc.mil/marinelink
Air Force:
Headquarters
ARMPC/RMIQL
550 C. St. West, Suite 50
Randolph AFB, TX 78150
http:/www.afpc.randolph.af.mil
(210) 565-2660
Forms
• Handouts
• Sample SCRA letters:
– http://legalassistance.law.af.mil/content/content.php?qrylvl=3&lvl1id
=1&lvl1folder=yes&lvl2id=11&lvl2folder=yes
State of Illinois Benefits and Protections
Statutory Benefits and Protections
• Service Member’s Employment Tenure Act
(330 ILCS 60/1 et seq.)
– Provides employment protection to service
members called into active duty service, 330
ILCS 60/4
– Provides a stay of civil actions while serving
on active duty, 330 ILCS 60/5.1
•Similar to Federal Servicemembers Civil
Relief Act (SCRA)
Statutory Benefits and Protections
• The Illinois Patriot Plan (Public Act 094-0635 )
– Residential Lease Protection —
• Amends the Code of Civil Procedure—Provides
that in an action for possession of residential
premises of a tenant or mobile home park
resident who is a service member deployed on
active duty or of any member of the tenant's or
resident's immediate family, the court may stay
the proceedings for a period of 90 days or adjust
the rental obligation to preserve the parties'
interests.
Statutory Benefits and Protections
• The Illinois Patriot Plan (Public Act 94-0635 ) cont’d
– Termination of Cellular Phone Contracts — Military Personnel
Cellular Phone Contract Termination Act:
• Provides that a service member called into active duty, or the
service member’s spouse, may terminate cellular phone contracts
without penalty under certain conditions.
Statutory Benefits and Protections
• The Illinois Patriot Plan (Public Act 094-0635 ) cont’d
– Interest Protection —
• Amends the Interest Act—Provides that no creditor shall charge
or collect from a service member, or spouse, interest or finance
charges exceeding 6% per annum during the period that the
member is deployed on active duty.
Resources
• All parts of society are deployed in support of
the GWOT.
• Accordingly, the entire Illinois community must
serve as the support system for these citizensoldiers and their families.
Discussion of Cir. Ct. Cook Co. / CVLS
Initiative
• Both the Bench and the Bar can help