SCRA: What military members need to know|
by Bernard Glavy
502nd Mission Support Group Judge Advocate
2/1/2013 - JOINT BASE SAN ANTONIO-RANDOLPH, Texas -- Although original legislation dates back to the Civil War and was later embodied in the Soldiers' and Sailors' Civil Relief Act, or the SSCRA of 1940; the basic intent of those previous laws - allowing military personnel to give full attention to their military duties - remains true today.
In 2003, President George W. Bush signed into law H.R. 100, known as the Service members Civil Relief Act or SCRA, completely rewriting the SSCRA of 1940, and expanding many of the previous law's civil protections.
Today's law applies to all military members, including regular forces, and Reserve and National Guard on Title 10 active duty orders, as well as their dependents.
SCRA provides an array of benefits and protections including reducing interest to six percent for debt incurred prior to entry into Title 10 active duty, staying civil proceedings, removing statutes of limitations, terminating certain leases, and enhanced requirements before eviction and foreclosure can occur.
Service members may be entitled to six percent interest on financial obligations entered into before the start of Title 10 active duty. This benefit applies to credit card, loan or mortgage obligations.
The law prohibits lenders from accelerating the principal amount owed, and forgives - not defers - the excess interest payments that would have been due under the higher rate. In other words, service members are not subsequently liable for the excess interest at some time in the future, such as when they leave active duty.
Generally, the reduced interest rate is effective only during the period of Title 10 active duty. Reduced interest on mortgage obligations may extend for one year following release from Title 10 active duty. The reduced rate is not available for refinancing or credit card balance increases accrued while on Title 10 active duty. It is also not available for federally guaranteed student loan obligations.
Although service members must notify creditors about their entry on Title 10 active duty, the burden is on the creditor to show that the service member's ability to pay the obligation is not materially impacted by military service.
Protections begin the first day of an active duty period and may extend from 30 days up to one year after members are released. Protections are not automatic. Service members must provide creditors with written notice and a copy of military orders.
Legal proceedings protections
It is important to recognize that the SCRA does not excuse service members from civil obligations. Instead, it serves to ensure that service members are not disadvantaged in civil matters because of their commitment to our nation.
The SCRA does not apply to criminal proceedings. Members involved in civil court and administrative proceedings may request a delay or stay of the proceedings. Those whose military service prevents them from participating in a proceeding on a required date must file a written request for a stay with the judge.
The request must include a date in the future when the service member will be available to participate and a commander's written confirmation that duty prevents the member's appearance and that leave is not authorized for the service member.
After receiving the required information, the judge must grant a minimum 90-day delay for the member. Additional requests for delays are within the discretion of the judge and based on continued, material effect of military duty on the service member's ability to participate in the litigation. A stay may be necessary in a variety of civil proceedings including divorce, child paternity, support and custody, and foreclosure.
A member who experiences a default judgment while on Title 10 active duty, or within 60 days after release, may request the court reopen the case and set aside judgment. The request must be made within 90 days from the date of release and the member must show the court how active duty materially affected his or her ability to defend against the action and what meritorious defenses apply to the case.
Statutes of limitation, lessee protection
SCRA removes statutes of limitation during the period of Title 10 military service. This protection applies whether the underlying cause of action accrued prior to or during the period of service.
Recent amendments now permit service members to terminate motor vehicle leases signed before or during Title 10 active duty under certain strict conditions. Generally, the SCRA protects members for pre-service leases or reserve or guard members who, after entering into a lease, are called to active duty for 180 days or more.
Protections are limited to certain situations such as after entering the lease the member either receives military orders for a permanent change of station from the continental U.S. to overseas, or is deployed for 180 days or more.
Service members must provide written notice to the lessor along with a copy of the appropriate military orders, and must return the vehicle to the lessor within 15 days after giving notice. The lease termination date is the date the vehicle is surrendered.
Under certain prescribed situations, leases and rental agreements for real estate entered into before or during active military service may be terminated without penalty.
This protection applies when a member is called to Title 10 active duty or deployed for at least 90 days, or receives military orders for permanent change of station.
A written notice and a copy of the orders must be provided to the lessor. By law, in most cases, members will remain liable for one additional amount of monthly rent after providing proper notice. The law does not excuse the payment of any rent in arrears.
Eviction, or foreclosure protection
The SCRA also provides protection to service members facing evictions or foreclosures. In most circumstances, the SCRA requires all landlords, in all states to obtain a court order before evicting service members or their dependents during periods of Title 10 active duty.
Landlords who violate the SCRA protections face criminal charges.
A court order is also necessary in foreclosure situations when service members breach the terms of their real estate mortgages. According to the SCRA, the sale, foreclosure or seizure of the property for breach of an obligation absent a court order is not valid if made during or within nine months after the period of the members' military service.
Cell phone contracts
Cell phone contracts may be suspended or cancelled if a member is deployed overseas for 90 days or longer, or given orders for a permanent change of station and the new location does not support services.
Members may keep their cell numbers, if relocation is for three years or less, and the member re-subscribes with the carrier within 90 days of returning to the service location. This expanded cancellation provision is limited to cell phones.
Before initiating any of the SCRA's benefits and protections or waiving any protections, service members are encouraged to consult with a legal assistance attorney. Appointments are available Monday through Friday by calling the 902nd Mission Support Group/Judge Advocate office at (210) 652-6781.