By Andrew Myers
Tue, May 13 2008 Attorney Myers: My husband is in Iraq with the Army. I received court papers, and he is now being sued over a disputed business transaction that took place before he left. What can I do? He's not here to defend himself.
Uncle Sam foresaw this scenario. There is protection for folks who are in the service, deployed on official duty. It's called the "Federal Servicemembers Civil Relief Act of 2003." The SCRA, as it's called, replaced the old Soldiers' and Sailors' Civil Relief Act, which dated back to World War II. In fact, both laws date back to the Civil War era. The SCRA provides protection against various types of legal action including breach of contract, forced bankruptcy, foreclosure and family law judgments. The way it works is this: You or the service member must notify the court of the service member's duty assignment. Request a stay of litigation. This puts the case on hold. You must file a signed statement by the service member's commanding officer specifying that the member is on active duty and stating that the duty will materially affect his or her ability to defend against the lawsuit for a specified period of time, during which leave is not available. The SCRA entitles the service member to an automatic mandatory 90-day stay of proceedings. After that, an extended, discretionary stay may be allowed if a commanding officer's statement indicates that continued military duty prevents the member's ability to defend. At that point the court must either allow the extended stay of the lawsuit, or else appoint counsel to protect the service member's rights. The difference between the old Solders' and Sailors' Act and the newer SCRA is that the new law provides a mandatory initial 90-day stay. Under the old law there was no specific length of the stay and all of the delays were discretionary. The protections of the SCRA extend to all active-duty service members including reservists and National Guard members serving for more than 30 consecutive days. SCRA also applies during periods of absence from active duty due to illness, injury, leave and other lawful causes. I think you can assume that if you're AWOL, you shouldn't expect the court's protection. As a technical matter, before a lawsuit like the one in the question above could reach the final stage of a judgment, the person bringing the suit must file what is called a military affidavit. This affidavit requires the plaintiff to swear and affirm knowledge that the defendant is not in active duty in the military. Information on active duty service members is available. If someone files a false military affidavit, the judgment would theoretically be reversible. The person who filed the phony affidavit would be liable for perjury. But, don't let it get that far. The SCRA's purpose is to give service members protection while they are on active duty. An important reminder, though: The SCRA provides a stay of litigation. This does not end the case. It puts it on hold. Once the service member is discharged he or she has 90 days to report to the court. If the person does not, the case could then go to a default judgment and the SCRA provides no protection at that point. The key is getting a statement from the commanding officer — or C.O. in military-speak — and following the procedures spelled out in the law.
Andrew Myers of Derry has law offices in Derry and North Andover, Mass. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.
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