by Mari Cheney
If you are a civil attorney in Utah, you may have already encountered
the Servicemembers Civil Relief Act (SCRA), see 50 U.S.C. app. §§
501-96, if your client, opposing party, or a third party to your
case is on active duty in the military or is otherwise affected by
the SRCA. If you are new to the SCRA, this article will provide
information about the basic provisions of the SRCA and secondary
sources that provide detailed analysis and sample forms.
In 1941, a Salt Lake attorney outlined the important aspect of
the Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) (the
predecessor of the SCRA) in two Utah Bar Bulletin articles. See
D. Ray Owen, Jr., The Soldiers’ and Sailors’ Civil Relief Act of
1940, 11 Utah B. Bull 1 (Jan.-Feb. 1941) and The Soldiers’ and
Sailors’ Civil Relief Act of 1940 Part II, 11 Utah B. Bull 35 (Mar.-Apr.,
1941). Owen detailed case law that attempted to resolve problems
within the SSCRA, as well as application and scope.
Additionally, another article examining the SSCRA was published
after Operation Desert Storm began in 1991. See Kevin R. Anderson
& David K. Armstrong, Soldiers’ and Sailors’ Civil Relief Act: A Legal
Shield for Military Personnel, Utah B.J., (Apr. 1991), at 8. The
authors highlighted important provisions in the SSCRA and
Below is a list of those important provisions as updated by the SCRA
as well as citations to pertinent U.S. Supreme Court, Tenth Circuit
Appellate, and Utah cases decided since 1991. See Servicemembers
Civil Relief Act, 50 U.S.C. app. §§ 501-96 et seq. (updating and
renaming the Soldiers’ and Sailors’ Civil Relief Act).
Section 502: Purpose – Temporary Stay
Provides for a temporary stay in both judicial and administrative
proceedings where servicemembers’ civil rights may be
adversely affected. See id. § 502.
Section 511: Persons Benefited or Protected
Defines protections and benefits for men and women in “uniformed
services,” which include the armed forces and the commissioned
corps of both the National Oceanic and Atmospheric Administration
and the Public Health Service. See 10 U.S.C. §101. Besides active
duty servicemembers, in some instances the SCRA also protects
members of the National Guard called to active service and
reserve members of a uniformed service. See also 50 U.S.C.
App. § 516. Dependents – including spouses and children –
also benefit in some cases. See United States v. Hampshire,
95 F.3d 999 (10th Cir. 1996) (holding that defendant was not
entitled to protections of the SSCRA when he went AWOL from
the military because he was not longer on active duty as defined
by this section).
Section 517: Waiver of Rights
Describes how and when a servicemember may waive the
SCRA’s protections, including what waivers must be in writing.
See 50 U.S.C. app. § 517.
Section 518: Future Financial Transactions
Discusses when a stay cannot be the sole basis for creditors to
deny or revoke credit or change the terms in a credit agreement.
See id. § 518.
Section 519: Legal Representatives
Defines the legal representative of the servicemember as either
the member’s attorney or a person with power of attorney. See
id. § 519.
Section 521: Default Judgments (Includes Child Custody
Requires the plaintiff to file a military service affidavit stating
whether plaintiff has determined if a defendant is in military
service. See id. § 521 (b)(1)(A). If the defendant is in military
service, the court cannot enter judgment until the court appoints
legal representation. See id. § 521 (b)(2). Additionally, the
court shall grant a minimum 90-day stay if the court finds that
there is a defense and the defendant needs to be present, or
counsel cannot locate the servicemember or determine if there
is a meritorious defense in the case. See id. § 521 (4)(d).
Also provides that the servicemember may ask the court to reopen a
case where default judgment was entered during military service
or within 60 days after termination of military service where (a)
the military service materially affected the servicemember’s ability
to defend herself, and (b) that a meritorious or legal defense
exists. See id. § 521 (4)(g)(1). This application to reopen a
case must be made within 90 days after termination of military
service. See id. § 521 (4)(g)(2).
Section 522: Stay of Proceedings (Includes Child Custody
Applies to servicemembers during military service or within 90
days after termination of military service where the servicemember
has received notice of proceeding. See id. § 522 (a). Prior
to a final judgment, the court shall stay the proceedings upon
application by the servicemember where the servicemember
provides (1) communication that details how current military
status materially affects his or her ability to appear in court and
the date he or she will be available to appear and (2) communication
from the servicemember’s commanding officer verifying current
military status and that the servicemember is not authorized for
leave. See id. § 522 (b); see also Turner v. A. Passmore & Sons,
Turner v. A. Passmore & Sons, Inc., 2009 U.S. App. LEXIS 17876
(10th Cir. Okla. Aug 4, 2009), (noting that a when a stay is granted
under this section, “justice is best serviced by construing this
court’s stay order as having suspended all deadlines applicable
to the appeal, including the cross-appeal deadline”).
Also provides for application of additional stay and appointment of
counsel if the court refuses to grant additional stay. See Garramone v.
Romo, 94 F.3d 1446 (10th Cir. 1996) (declining to extend
protections of this section where petitioner failed to request a stay);
Davis v. Davis, 2001 UT App 225, 29 P.3d 676 (noting that final
adjudication of child custody was stayed pursuant to the SSCRA).
Section 526: Tolling of Statutes of Limitations
Dictates that military service may not be used in computing time
for statutes of limitations including redemption of real property.
See 50 U.S.C. app. § 526 (a); see also Conroy v. Aniskoff, 507
U.S. 511 (1993) (detailing the legislative history of the SSCRA
and holding that the plain language of this section makes it
clear that a servicemember’s military service should not be
included in calculating time as it relates to the redemption of
real property); Hamner v. BMY Combat Sys., 79 F.3d 1156,
(10th Cir. 1996) (agreeing with prior decision that states “the
[SSCRA] bars any period of military service from being included
in computing a statute of limitations for or against a person in
the military service.”)
Section 527: Maximum Rate of Interest on Debts
Pertains to debt incurred prior to military service: that no debt
should incur more than 6% interest during military service and
one year after for mortgages and trust deeds. See 50 U.S.C. app.
§ 527 (a)(1).
Section 531: Eviction and Distress
Protects servicemembers from eviction during military service if
the premises were intended to be occupied primarily as a residence
and monthly rent does not exceed $2,932.31. See 74 Fed. Reg.
8068 (Feb. 23, 2009), available at http://www.gpo.gov/fdsys/
Section 533: Mortgages and Trust Deeds
Prohibits the sale, foreclosure, or seizure of property owned
prior to military service where the sale, foreclosure, or seizure
occurs during military service or within nine months after
unless approved by court order or the servicemember has
waived rights under section 517. See 50 U.S.C. app. § 533 (c).
Section 535: Termination of Leases
Covers both residential and motor vehicle leases, see id. § 535 (b),
and allows the lessee to terminate a lease after the beginning of
military service or the date of military orders, see id. § 535 (a)(1).
Section 593: Professional Liability Protection
Applies to servicemembers who were health care, legal, or
other professionals prior to being ordered to active duty. See
id. § 593 (a). The servicemember may apply for a suspension
of coverage and insurance providers cannot require premium
payments during that time. See id. § 593(b).
Section 595: Residency
Guarantees residence or domicile for voting purposes. See id.
§ 595; Fox v. Mandelbaum, 16 F.3d 416, (10th Cir. 1994)
(remanding to lower court to make a determination about diversity
jurisdiction based on plaintiff’s statement about his domicile
and residence during military service); 50 U.S.C. app. § 571,
Residence for Tax Purposes; Fatt v. Utah State Tax Commission,
884 P.2d 1233 (holding that “persons entering the service carry
with them the same tax immunity which they previously enjoyed
in their home state”).
It is also important to note that in Utah, the legislature during the
2009 legislative session enacted Utah Code section 30-3-40, Custody
and parent-time when one parent is a service member, during
the 2009 legislative session. The new law provides guidelines for
both custodial and noncustodial parents who are servicemembers
where no parenting plan or other agreement is in place to provide
for the care of children in the servicemember’s absence.
For example, if the noncustodial parent is deployed, the servicemember’s
parent time may still be exercised through a family
member “with a close and substantial relationship” with the
child. See Utah Code Ann. § 30-3-40(2)(b). If the custodial parent
is deployed and the noncustodial parent will not make arrangements
for care, the custodial parent can make arrangements for
childcare while deployed but the care must not interfere with the
noncustodial parent’s parent time. See id. § 30-3-40(2)(a)(ii).
There are a variety of general and subject-specific secondary
sources related to the SCRA that provide more information
about the SCRA as well as sample language to include in forms.
Some of this information can be found online.
American Bar Association, The Judge Advocate General’s
School Guide to the Servicemembers Civil Relief Act (2007).
Excellent and brief guide to the SCRA that includes analysis of general
provisions, procedural protections, and specific explanations of
taxation and voting rights and financial protections. Also includes
analysis of SCRA’s specific provisions on evictions, leases,
installment contracts, and mortgages. Each section provides
citations to pertinent case law. The authors also highlight terms
that may be ambiguous, as the terms have been interpreted in
various ways in different jurisdictions.
Contains a sample letter to a creditor asking for a reduction in
interest to 6% (Appendix B).
A similar guide – dated one year earlier – is available online at
R. Chuck Mason, The Servicemembers Civil Relief Act (SCRA):
Does It Provide for a Private Cause of Action?, Congressional
Research Service Report for Congress, March 23, 2009, available
Examines the U.S. District Court split in whether there is a private
cause of action under the SCRA.
Judge Advocate General’s Corps, U.S. Army, Legal Services, available
Provides links to publications that include Army Lawyer and Military
Law Review. Also links to the Legal Center and School’s publication
database, which has a number of SCRA-related guides.
Mark E. Sullivan, The Military Divorce Handbook: A Practical Guide
to Representing Military Personnel & Their Families (2006).
Practical manual for attorneys who represent servicemembers
or spouses going through a divorce. Includes tips on locating
and serving servicemembers, including members located overseas.
Also includes a sample motion for stay under SCRA and
a domicile checklist for servicemembers and spouses. Provides
information on parent time, custody, and alimony issues that may
arise during a military divorce.
Besides a wealth of information in the appendices, includes a
CD-ROM with sample language and forms.
U.S. Department of Justice, Safeguarding the Rights of Servicemembers
and Veterans, available at http://www.servicemembers.gov.
DOJ-specific information about cases the department has filed on
behalf of servicemembers to enforce civil rights under various
Acts, including the SCRA. Includes links to SCRA guides and
complaints filed by the DOJ.