RELIEF FOR MILITARY PERSONNEL;
UNDER THE SERVICEMEMBERS’ CIVIL RELIEF ACT
The soldier that risks his or her life to protect our country do and should enjoy certain protections under the law not afforded to an everyday citizen. One particular safeguard rests in the Servicemembers’ Civil Relief Act (“SCRA”).
Essentially, SCRA is a federal law that protects a military servicemember-soldiers, sailors, and airman to list a few-from being sued while he or she is in active service. (In some instances, SCRA applies to veterans for up to one year after active service as well.)
The SCRA applies in contexts including bankruptcy and certain legal proceedings that commonly precede bankruptcy.
SCRA Protects Servicemembers Against Default Judgments
In many cases, a U.S. servicemember stationed overseas or who otherwise has military obligations does not have the ability to be present during court proceedings if he or she is sued. (Normally, if a person is sued and he or she fails to appear in court, the court issues a default judgment against the person-essentially amounting to an “automatic win” for the party filing the lawsuit.)
Under SCRA, this action is prohibited for service members. Specifically, no default judgment may be entered against a military member until an attorney is appointed to represent his or her interest. Furthermore, by request of the servicemember’s attorney or on its own accord, a court may stay (delay) civil proceedings.
For both default judgments and other actions, the stay will be no less than 90 days, but may be set for a longer timeframe at the discretion of the court.
The execution (carrying out) of judgments against a servicemember may also be stayed indefinitely so long as the servicemember remains in the military. Additionally, judgments that establish a garnishment or attachment of the servicemember’s property may be vacated (cancelled).
Useful Legal Shields
The SCRA provides additional tools that may help a servicemember who files for bankruptcy protection.
An interest reduction on some obligations assumed prior to entering the military is one example. Everything from preventing creditors from getting at assets through garnishment to facilitating timeframe accommodations in court makes the SCRA a potentially powerful ally to a servicemember facing financial difficulties.
U.S. servicemember and their families who are in financial distress and considering bankruptcy should consult with a bankruptcy attorney.