It is important for current members of the military to understand their legal rights, even during times when these rights may not be at the forefront of their thoughts. Service in the military may require a person to be absent from the United States. Certain actions should not occur without a person’s opportunity to respond or otherwise challenge an action or allegation. Members of the military may have certain rights relating to bankruptcy as well.
Servicemembers’ Civil Relief Act
The Servicemembers’ Civil Relief Act is also referred to as the SRCA. The SCRA is found at 50 U.S.C. app. §§ 501 et seq. The SRCA generally applies to any proceeding held in a court. Unless there is a specific provision excluding application of the SRCA, the SCRA will apply to actions held in a bankruptcy court as well.
Additionally, the Federal Rules of Civil Procedure and the Federal Rules of Bankruptcy Procedure make note in certain provisions of the SRCA and its applicability.
The main protections provided by the SCRA relate to default judgments, stay of proceedings, and stays or vacations of execution of judgments, attachments, and garnishments.
Affidavit Regarding Military Service
The plaintiff in seeking a default judgment must state in an affidavit whether the defendant is currently in the military. An affidavit is a sworn statement. Untrue statements in such an affidavit subject the declarant to perjury penalties. No bankruptcy default may be entered without such an affidavit.
The purpose of the SCRA is strengthen and expedite national defense by giving servicemembers certain protections in civil actions.
By providing for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect servicemembers during their military service, the SCRA enables servicemembers to focus their energy on the defense of the United States.
Among other things, the SCRA allows for forbearance and reduced interest on certain obligations incurred prior to military service, and it restricts default judgments against servicemembers and rental evictions of servicemembers and all their dependents.
The SCRA applies to all members of the United States military on active duty, and to U.S. citizens serving in the military of United States allies in the prosecution of a war or military action. The provisions of the SCRA generally end when a servicemember is discharged from active duty or within 90 days of discharge, or when the servicemember dies.
Portions of the SCRA also apply to reservists and inductees who have received orders but not yet reported to active duty or induction into the military service.