Temporary Suspension of Judicial and Administrative Proceedings for Servicemembers Through The Servicemember’s Civil Relief Act

Key Terms Of The Servicemember’s Civil Relief Act

Several key terms need to be kept in mind when analyzing the protections of the Servicemember’s Civil Relief Act, those key terms include: “servicemember”; “uniformed services”; “armed forces”; “military service”; “period of military service”; and “dependent.” The term “servicemember” means a member of the “uniformed services,” and also includes legal representatives of the servicemember (i.e. individuals holding power of attorney for the servicemember and an attorney acting on behalf of a servicemember).v Title 50 App. U.S.C. § 519. The term “uniformed services” means the armed forces, the commissioned corps of the National Oceanic and Atmospheric Administration, and the commissioned corps of the Public Health Service. Title 10 U.S.C.A. § 101(a)(5). And for the sake of clarity, the “armed forces” means the Army, Navy, Air Force, Marine Corps., and Coast Guard. Title 50 App. U.S.C. § 511(1) and Title 10 U.S.C.A. § 101(a)(4). 

The term “military service” for servicemembers in the armed forces means full time active duty in the active military service of the United States, including full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. The term “period of military service” means the period beginning on the date on which a service member enters military service and ending on a date on which the servicemember is released from military service or dies while in military service. Title 50 App. U.S.C. § 511(3). The term “dependent” means a servicemember’s spouse, a servicemember’s child, and an individual for whom the servicemember provided more than one-half of the individual’s support for 180 days immediately preceding an application for relief under the SCRA.10 Title 50 App. U.S.C. § 511(4)(C).

Effect of Servicemember’s Civil Relief Act On The Court

First, the jurisdiction of the Servicemember’s Civil Relief Act includes actions every federal court, state court, and subdivision of every State in the United States and U.S. territory. Title 50 App. U.S.C. § 512(a). The Servicemember’s Civil Relief Act does not, however, extend to criminal proceedings. Title 50 App. U.S.C. § 512(b). If it is determined that the defendant is a servicemember in military service then the court cannot enter a default judgment against the servicemember until the court appoints the servicemember an attorney. Title 50 App. U.S.C. § 521(b)(2). Further, if the attorney appointed for the servicemember cannot find the servicemember, then any actions by the attorney shall not waive any defense of the servicemember or otherwise bind the servicemember. If the court, upon application of counsel or on the court’s own motion, determines that there may be a defense to the action and a defense cannot be presented without the presence of the servicemember, the court shall grant a minimum ninety (90) day stay of the proceedings. Title 50 App. U.S.C. § 521(d)(1). The same minimum stay shall be granted if the court determines that counsel for the servicemember has used due diligence in attempting to contact the servicemember, but has been unable to do so. Title 50 App. U.S.C. § 521(d)(2).

Further, if the court grants a default judgment against a servicemember and the servicemember files an application to vacate or set aside the judgment within ninety (90) days of his/her termination or release from military service, the court must vacate or set aside the judgment if the servicemember shows that (a) he/she was materially affected by reason of that military service in making a defense to the action, or (b) the servicemember has a meritorious defense to the action or some part of it. Title 50 App. U.S.C. § 521(g).

Servicemember's Application for Stay of Court

The Servicemember’s Civil Relief Act provides that a servicemember can apply for a stay of a proceeding even when the creditor has provided him/her with notice of the proceeding. Title 50 App. U.S.C. § 522. The servicemember can apply for relief under Section 522 while in military service or within 90 days after termination or release from military service, and if he/she has received notice of the proceeding. The servicemember must make the application before the rendition of a final order or judgement. The servicemember must provide the court with a communication setting forth why the current military duty requirements materially affect his/her ability to appear, and a date on which he/she will be available to appear. Title 50 App. U.S.C. § 522(b)(2)(A). Further, the servicemember must provide the court with a communication from their commanding officer stating that the servicemembers current military duty prevents him/her from appearing at the court, and that at the time of the letter he/she is not authorized to have leave. Title 50 App. U.S.C. § 522(b)(2)(B). The servicemember may also request an additional stay, and if the additional stay is denied then the court must appoint an attorney to represent the servicemember. Title 50 App. U.S.C. § 522(d)(1-2)

Jointly Liable Party Or Related Third Parties Of Servicemembers

The Court is under no obligation to suspend the proceeding for a jointly liable third party who shares liability with an active duty servicemember; however, Section 513 of the Servicemember’s Civil Relief Act states that whenever a court stays, postpones, or suspends (a) the enforcement of an obligation, (b) the prosecution of a suit or proceeding, (c) the entry of a writ or order, (d) or the performance of any other act, the court may grant a stay, postponement, and/or suspension to a surety, guarantor or other person who may be primarily or secondarily liable. Title 50 App. U.S.C. § 513(a). Further, in any action where a judgment is vacated or set-aside, the court may set aside or vacate the judgment against a person who is primarily or secondarily liable. Title 50 App. U.S.C. § 513(b). Then again, the court may also allow a plaintiff to continue its cause of action against co-defendants that are not in military service. Title 50 App. U.S.C. § 525(b).