Legal kevlar for servicemembers

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Protecting those who serve

June 2014, Volume 50, No. 6

Legal kevlar for servicemembers 

John S. Odom Jr.

Members of the military rely on the Servicemembers Civil Relief Act to prevent foreclosures, evictions, and default judgments while on active duty. It is your client’s biggest weapon if you know how to harness its power.

The Servicemembers Civil Relief Act (SCRA) is the principal federal statute that protects members of the military in civilian legal matters—from evictions to nonjudicial foreclosures to installment contract termination.1 In one form or another, the statute has safeguarded servicemembers since the Civil War.2 In many respects, the SCRA alters the terms of conventional obligations, and some attorneys and judges unfamiliar with it may initially refuse to accept that your arguments have any basis in statute or case law.

It takes a strong advocate to carry these cases to a successful conclusion, but in recent years, more courts have been enforcing the SCRA. You must learn the ins and outs of the statute before you can protect your client’s rights.

The starting point for any argument in SCRA-related matters is Le Maistre v. Leffers and Boone v. Lightner.3 In both cases, the U.S. Supreme Court held that the statute “must be read with an eye friendly to those who dropped their affairs to answer their country’s call,”4 and you should reiterate this—always urge the court to construe the act liberally in your client’s favor. For years, almost every SCRA violation suit was met with a motion to dismiss alleging that the statute did not allow a private cause of action. Fortunately, servicemembers succeeded in persuading many courts that Congress would not have enacted a comprehensive set of protections only to have violators escape liability for encroaching on their rights while they were on active military duty.5 In 2010, Congress amended the SCRA to specifically recognize a private right of action for damages, declaratory or equitable relief, and attorney fees and costs.6

Default judgments

Although many of the statute’s protections apply only to preservice obligations (such as mortgages or installment purchase contracts executed before an active-duty period), some of the most important provisions do not hinge on when the servicemember incurred the obligation. Paramount among these are the provisions concerning default judgments.7 The SCRA prevents the entry of a default judgment until the moving party files an affidavit indicating the servicemember’s military status. If the movant cannot ascertain the status, the affidavit should include this information. If the affidavit confirms that the servicemember is on active duty, the court must appoint an attorney to represent the absent defendant. If the defendant’s military status cannot be ascertained, the court may require the moving party to post bond to provide for damages if it is later determined that the defendant was on active duty at the time of the default judgment.

The court-appointed attorney can obtain a stay of the proceedings for a minimum of 90 days as long as there may be a defense to the action which would require the servicemember to be present, or the attorney has been unable to contact the person or otherwise ascertain whether a meritorious defense exists.8 The stay gives the attorney time to locate the client, but if that is not possible, the attorney cannot waive any of the servicemember’s defenses or otherwise legally bind him or her.9

At the bare minimum, the appointed attorney should propound discovery to obtain all information in the moving party’s possession concerning the servicemember’s personal identifying information, including full name, Social Security number, date of birth, and last known address and contact information. Armed with at least a name and a Social Security number or date of birth, searching the SCRA website of the Defense Manpower Data Center (DMDC)—an online database of active-duty military personnel—takes only seconds.10 The results (which print out in a certificate format) indicate whether the servicemember is on active duty or has been on active duty within the past year.

In the case of National Guard and reserve personnel (for active-duty periods after October 2003), the DMDC website will also show the date the person received notice of an upcoming active-duty period. Those military personnel receive certain SCRA protections from the date they receive their orders, rather than their first day of active duty.11

If a default judgment was taken during the active-duty period or within 60 days of release from active duty—and there was a meritorious defense to the action—you can move to set aside or vacate the judgment at any time during the active-duty period or up to 90 days after discharge. In your motion papers, cite the meritorious defense and show how your client’s military duty adversely affected his or her ability to appear and defend the lawsuit. Being stationed in a war zone when the suit was filed and without any notice of the action should, in almost every court, constitute military duties that materially affect the servicemember’s ability to appear and defend the action. Overseas deployment is not required to trigger the SCRA’s protections: Active-duty status, or the receipt of orders calling reserve and National Guard members to active duty, is the triggering mechanism.

If a party did not comply with the SCRA’s statutory requirements, you may be able to file an action for equitable relief and damages. For example, if a mortgage foreclosure was taken by default judgment with no affidavit of military status, your client was not served with the papers, and the property was sold, it would be futile to try to vacate or set aside the judgment.12 In these instances, consider bringing an action against the foreclosing party, such as the bank, and its law firm. Obtain all the pleadings filed in the foreclosure case from the court clerk. If no affidavit of military service was filed, there is a strong likelihood of an SCRA violation.

The protections against default judgments apply regardless of when the obligation was incurred, whether preservice or during the active-duty period. In that regard, it is among the strongest safeguards in the entire SCRA and is a greater shield than the statute’s provision protecting against mortgage foreclosures,13 which applies to only preservice obligations.

Mortgage foreclosures

If a servicemember executes a preservice mortgage, a deed of trust, or any other security in the nature of a mortgage, he or she is protected from nonjudicial foreclosures during an active-duty period (or from the date of receipt of orders for National Guard and reserve members) and for one year after release from active duty.14 In any foreclosure during this period, the foreclosing party must file an action and provide to the court proof of service on the defendant in a manner  satisfactory to the court before any order can be entered authorizing the foreclosure, seizure, or sale of the property.15

When it appears that your client’s ability to comply with the obligation is materially affected by his or her military service, the court may, sua sponte, and shall on application by the servicemember, stay the foreclosure proceedings or adjust the obligation to preserve the parties’ interests.16 Many courts are unaware that some of the SCRA’s provisions basically rewrite the creditors’ and servicemembers’ traditional mortgage obligations and foreclosure rights, but the statute is very clear.

For example, in Brewster v. Sun Trust Mortgage, Inc., the Ninth Circuit reaffirmed the requirement that the SCRA be liberally interpreted in the servicemember’s favor and held that the term “foreclosure” in 50 U.S.C. App. §533 includes the attempted collection of fees related to a notice of default on a California property.17

It is always the foreclosing creditor’s obligation to determine the mortgagor’s military status—creditors proceed nonjudicially at their own peril.18 Even if the servicemember never notified the mortgage servicing company of his or her entry into active duty (or receipt of orders by National Guard and reserve members), any nonjudicial foreclosure proceedings on a preservice obligation will likely constitute an actionable SCRA violation.

After several high-profile mortgage foreclosure cases in 2009 and 2010, and in direct response to pleas from the mortgage servicing industry, the DMDC created a process for mortgage servicing companies to submit batch processing requests to check the SCRA database for numerous names simultaneously. Although most foreclosure actions that violated the SCRA occurred during that mortgage meltdown, some cases have yet to be filed. Any statute of limitations is tolled for the entire period of military service, so if a servicemember continued on active duty after the foreclosure, he or she could still bring a lawsuit.19

Storage wars

Sometimes, servicemembers’ stored property is seized and sold to satisfy a storage lien for unpaid storage charges or a mechanic’s lien for automobile repairs without a valid court order authorizing the action. A storage company or a mechanic that does this is liable for damages, even if it was unaware of the owner’s military status.20 At least one federal court has held that compliance with the applicable section of the SCRA is a matter of strict liability: Either the storage company had a valid court order issued before the foreclosure or enforcement of the storage lien, or it did not.21

Many states have laws concerning the enforcement of a storage lien or a mechanic’s lien for repairs.22 Usually they require notice by certified mail, advertisement of the proposed sale in a newspaper, and a report of the sale proceeds. However, if the goods that were sold without a court order are the servicemember’s property, none of those state laws prevent an action under the SCRA for damages, including punitive damages if warranted, and attorney fees.23

Damages

There is almost no reported case law on what types of damages servicemembers can recover under the SCRA, but the statute makes it clear that all types of damages, including punitive, are available.24 Parties settle the vast majority of these cases before trial, leaving no judicial footprint in their wake. However, in a pretrial ruling in Hurley v. Deutsche Bank Trust Co. Americas, a Western District of Michigan court held that both compensatory and punitive damages could be recovered in appropriate cases.25

In another pretrial ruling, the Hurley court also concluded that the types of recoverable damages were the same ones available for violations of other federal consumer protection statutes, such as the Fair Debt Collection Practices Act and the Fair Credit Reporting Act. Those include economic (loss of equity in a home, for example) and noneconomic damages, such as personal humiliation, mental anguish, and negligent or intentional infliction of emotional distress. As the Hurley court noted, the plaintiffs’ damages would be assessed according to the standards developed in federal case law, as opposed to Michigan state jurisprudence.26 There is a long-established body of federal tort law (arising in large part from 42 U.S.C. §1983 civil rights cases decided over many years), and your argument should always be that an SCRA plaintiff proves damages according to federal—and not state—standards since you are bringing the action under federal law.

Other statutory protections

A complete analysis of all the protections the SCRA affords is outside the scope of this article. But as a general rule, there is no creditor self-help in foreclosure, repossession, or sale of a servicemember’s property for any preservice obligation. For example, if an auto loan is executed before a period of active duty or furniture is purchased on an installment sales contract—and a payment is made before the active-duty period—there can be no self-help repossession of the goods.27 If the infamous “Joe the Repo Man” snatches a servicemember’s car off the street for a missed payment and that obligation is protected by the SCRA, Joe and the finance company that sent him have set themselves up for a damages suit. In landlord-tenant disputes, nonjudicial eviction is not permissible if the monthly rent is less than about $3,200 (a figure that is adjusted annually).28

If any obligation is incurred preservice, regardless of its terms, there can be no nonjudicial foreclosure, repossession, or self-help enforcement by the creditor. The creditor must file an action in court, and there would be a mandatory hearing during which the servicemember can seek relief from the creditor’s efforts to enforce the obligation.

When our servicemembers go on active duty, they want to know that their right to be protected against default judgments, eviction, vehicle repossession, and mortgage foreclosure will be enforced. So on the legal battleground, the SCRA is their Kevlar. Plaintiff lawyers need to know how to protect our warriors from unlawful actions—or how to successfully prosecute violators if the damage has already occurred.

John S. Odom Jr. is a partner with Jones & Odom in Shreveport, La., and a retired colonel in the U.S. Air Force. He is the author of A Judge’s Benchbook for the Servicemembers Civil Relief Act (ABA 2011) and can reached at john.odom@jodplaw.com.

Notes:

  1. 50 U.S.C. App. §§501-597b (2010).
  2. The law was known as the Soldiers’ and Sailors’ Civil Relief Act from World War I until 2003, when it was comprehensively updated and given its current name.
  3. 333 U.S. 1, 5–6 (1948); 319 U.S. 561, 575 (1943); see also Conroy v. Aniskoff, 507 U.S. 511, 516–17 (1993), in which the Supreme Court held that the SCRA must be interpreted according to its clear language.
  4. Le Maistre, 333 U.S. at 6 (citing Boone, 319 U.S. at 575); see e.g. Venneman v. BMW Fin. Servs., NA, LLC, 2013 WL 6858848 at *5 (D.N.J. Dec. 30, 2013); Durm v. Am. Honda Fin. Corp., 2013 WL 6490309 at *2 (D. Md. Dec. 9, 2013). The courts in Venneman and Durm held that capitalized cost reduction payments made at the outset of a vehicle lease were considered lease payments made in advance under 50 U.S.C. App. §535(f), which were required to be refunded pro rata in the event the lease was terminated during its term. At press time, Venneman was on appeal to the Third Circuit.
  5. A comprehensive list of cases holding that there is an implied private right of action to enforce SCRA violations can be found in Gordon v. Pete’s Auto Serv. of Denbigh, Inc., 838 F. Supp. 2d 436, 445–46 (E.D. Va. 2012).
  6. 50 U.S.C. App. §597a (2010).
  7. 50 U.S.C. App. §521.
  8. 50 U.S.C. App. §521(d).
  9. 50 U.S.C. App. §521(b)(2).
  10. The Servicemembers Civil Relief Act, Single Record Request, www.dmdc.osd.mil/appj/scra/single_record.xhtml.
  11. 50 U.S.C. App. §516.
  12. See 50 U.S.C. App. §521(h). A bona fide third-party purchaser of such real estate is protected in its continued possession of the property.
  13. 50 U.S.C. App. §533.
  14. 50 U.S.C. App. §533(c).
  15. Id.
  16. See 50 U.S.C. App. §533(b).
  17. 742 F. 3d 876, 878–79 (9th Cir. 2014).
  18. See e.g. Hurley v. Deutsche Bank Trust Co. Ams., 2009 WL 701006 at *6 (W.D. Mich. Mar. 13, 2009).
  19. 50 U.S.C. App. §§526, 597a.
  20. See 50 U.S.C. App. §537.
  21. Roberts v. Chips Express, Inc., 2012 WL 4866495 at *3–4 (E.D. Wis. Oct. 12, 2012).
  22. See e.g. Wis. Stat. Ann. §407.210 (West 2013), which allows enforcement of a lien for storage fees with no court involvement.
  23. 50 U.S.C. App. §§597a, 597b.
  24. Id.
  25. 2010 WL 5293592 at *4 (W.D. Mich. Dec. 17, 2010) (punitive damages are recoverable under the SCRA, but under the facts presented in this case, no punitive damages would be allowed). The parties in Hurley settled during the fifth day of the jury trial in 2011.
  26. See Memo. Op. & Or., Dkt. No. 307 at 9-11, Hurley, No. 1:08-cv-00361 (W.D. Mich. Feb. 4, 2011).
  27. See 50 U.S.C. App. §532.
  28. See 50 U.S.C. App. §535.


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