Military Servicemember’s Rights
The Servicemembers Civil Relief Act (SCRA) replaced the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The purpose of the law is to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members during their military service which include the following protections:
- PROTECTIONS AGAINST DEFAULT
In a civil action or proceeding and in Surrogate Court proceedings, in which the defendant or beneficiary has not made an appearance, and he or she is in the military, the court may not enter a judgment until after the court appoints a guardian ad litem to represent him or her. The court may grant a stay for at least 90 days. If the period of the stay has elapsed, the service member can request an additional stay. If the court refuses to grant a stay, it must appoint a guardian ad litem to represent the service member.
- THE STATUTE OF LIMITATIONS
Is tolled in actions or proceeding in any federal or state court or agency.
- INTEREST CAP
For any ‘pre-service” loan made prior to mobilization for active duty and the service member’s military pay has affected his or her ability to pay the loan, any interest in excess of 6% is forgiven.
Without a court order, a service member or dependents cannot be evicted when the monthly rent is less than $2,465. The court is granted latitude to grant a stay of 90 days, unless in the court’s opinion justice and equity require a longer or shorter period of time. The automatic stay provisions set forth in number one (1) generally do not apply to evictions.
- INSTALLMENT CONTRACTS
If a service member enters into an installment contract for real or personal property prior to active military service, the contract cannot be terminated nor can the property be repossessed for breach of contract without a court order.
- MORTGAGE FORECLOSURES
A bank cannot foreclose on a mortgage originated before active military service without a court order. The court has the power to stay the proceedings for a period of time as justice and equity require or adjust the obligation to preserve interests of all parties.
- TERMINATION OF REAL ESTATE LEASES
The SCRA covers leases for the service member or his or her dependents for residential, professional, business, agricultural or similar purposes. If the lease was contracted pre-service, it can be terminated. If the lease was entered into during military service, a member can also terminate it if he or she receives orders for a permanent change of station or is deployed for a period of ninety (90) days or more. For residential leases, the service member may give written notice (by personal delivery, private carrier or mail with return receipt) and a copy of military orders to the landlord. The service member will then owe the next thirty (30) days payment and the lease is deemed cancelled.
There are also provisions for termination of automobile leases and reemployment.