Soldiers’ and Sailors’ Civil Relief Act of 1940

The Soldiers’ and Sailors’ Civil Relief Act of 1940 (“SSCRA”) is a federal statute designed to “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.”  It is intended to enable persons on active duty and activated reservists to devote their attention exclusively to the defense needs of the nation by providing for the temporary suspension of civil proceedings that might prejudice the civil rights of such persons.

The SSCRA does not extinguish any liabilities or obligations, but merely suspends action and enforcement until such time as the ability of the service member to answer or comply is no longer materially impaired by reason of military service.  Additionally, the protections afforded by the SSCRA do not extend to criminal proceedings.

Who is protected?
Who is not protected?
What are the protections?
     Stay of Proceedings 
     Default Judgments
     Lease Termination and Rental Eviction
     Mortgage Foreclosure Protection
     Installment Contracts
     Taxes
     Professional Liability Protections
     Maximum Rate of Interest Protection

If you have any questions as to whether the protections of the Soldier’s and Sailor’s Civil Relief Act of 1940 applies to you and your particular case, call the Legal Assistance Office to schedule an appointment. 

Who is protected?

• Active Duty Members.  Members of every branch of the U.S. Military, National Oceanic and Atmospheric Administration (NOAA), and Public Health Service (PHS), whether officer or enlisted, who are on active duty or who are in training under the supervision of the United States just prior to entering active duty are entitled to the protections and benefits of the SSCRA.  
• Public Health Service Officers.  Public Health Service (PHS) officers qualify for SSCRA protections.      
• Reservists.  Reservists who are ordered to report for active military service are covered.  Active military service does not include annual duty for training (ADT) or individual training (IT).   NOTE – A reservist called to active duty falls under the protections of the SSCRA upon receipt of orders.  This could create a problem if the reservists enters into a contract after receiving orders, but before actually reporting for active duty.
• National Guard.  Members of the National Guard are covered only if ordered to federal service.  Duty ordered by the state will not trigger SSCRA protections.  However, some states such as Louisiana and Pennsylvania, have created a statute similar to the SSCRA to cover state service. 
• Persons SecondarilyLiable. The enforcement of any liability or obligation against any person primarily or secondarily liable with a service member may be subject to the same delays and vacations available to the service member.
• Dependents of Service Members. Dependentsof military personnel may apply to a court for limited protections under the SSCRA concerning rent, installment contracts, mortgages, liens, assignments, and leases. 
• U.S. Citizens Serving with Allied Forces.  Persons serving with an allied force who were, prior to that service, citizens of the United States, are entitled to the benefits and protections of the SSCRA unless dishonorably discharged from the allied force. 

Who is not protected?

The SSCRA does not provide protections to retired personnel not on active duty, reserve personnel not on active duty, personnel in an unauthorized absence (UA) status for more that 29 days, deserters, those in civilian confinement, or personnel serving a court-martial sentence involving total forfeitures of pay and allowances.

What are the Protections?

Stay of Proceedings.   When requested, courts will generally grant a temporary stay of proceedings (delay) in civil actions where a member’s military service has “materially affected” the member’s ability to appear and “defend” or “prosecute” an action.  The SSCRA was not meant to provide immunity from lawsuits or shield service members from civil action or provide them with otherwise unfair breaks.  The act will never relieve a member of the obligation to pay his or her just debts.

The general stay provision of the SSCRA declares that “[a]t any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.”

When requesting a stay, or delay, of the proceedings, it is vitally important to avoid making “an appearance” in the court.  In other words, the service member needs to protect himself from falling within the jurisdiction of the court.  If an appearance is made, the request for a stay could very well be denied. 

The best way to protect against making an appearance is to have a “stay letter” signed by someone in the chain of command, and not a judge advocate.  If opposing counsel is known, forward a copy of the requested stay to him or her.  It might be useful to send the letter only to opposing counsel instead of the court; the opposing counsel can notify the court in his or her capacity as an officer of the court.

Default Judgments.   Default judgments are court judgments entered against who has failed to defend against a claim that has been brought by another party.  In other words, if someone is suing you and you know about it, a court can rule against you simply because you failed to show up in court.  The SSCRA offers protections against such judgments.

Before any default judgment can be entered and made final, the plaintiff must file an affidavit setting forth facts showing that the defendant is not in military service.  The affidavit must state that either the defendant is not in the military service, the defendant is in the military service, or that the plaintiff is unable to determine whether or not the defendant is in the military service.  Filing a false affidavit subjects the affiant to misdemeanor prosecution with a maximum punishment of one-year imprisonment, a fine of $1,000, or both.

An affidavit stating that defendant is not in the military service is required before a default judgment may be entered.  If the affidavit states the defendant is a military member or that the plaintiff is unable to determine whether or not the defendant is in the military, the court will appoint an attorney to protect the rights of the absent service member.  The attorney is, in effect, appointed to locate and notify the service member of the action.

The SSCRA does not prevent entry of a default judgment when there has been notice of the action and adequate time and opportunity to appear and defend your case.

If a court enters a default judgment, a service member must move to reopen that judgment while on active duty or within 90 days after leaving military service.  Judgments will only be reopened if the service member has made no appearance and demonstrates that his or her:

 a.  military service materially affected the ability to appear and defend the action; and
 b.  there is a meritorious defense to part or all of the underlying action.

Lease Termination and Rental Eviction.   Individuals called to or entering active duty have the right to terminate a lease for a family dwelling, a business, or for an agricultural purpose provided the lease was entered into prior to entering active duty and the leased premises was occupied by the service member, or the service member’s dependents.

 Written notice must be provided to the landlord along with a copy of the service member’s orders.  Generally, a monthly lease will terminate 30 days after the first date on which the next payment is owned, after notice is delivered (i.e. notice given 10 August, next payment due 1 September, lease terminated 1 October – 30 days after 1 September).  All other leases terminate on the last day of the month following the month in which notice is given.

 The service member is entitled to the return of any security deposit to which he or she is entitled and a prorated refund of any advance rent.  NOTE – this does not mean that you automatically get the whole security deposit back.  If any damage is done to the apartment, the landlord may be entitled to withhold a portion, or the whole, of the security deposit to cover the costs of repairs. 

A service member’s dependents may not be evicted from a dwelling the rent for which does not exceed $1,200, except upon a court order.  This provision does not apply to business premises.  Courts must order a stay of eviction for a period of 3 months if the tenant's ability to pay rent is materially affect by military service.

Mortgage Foreclosure Protection.  The SSCRA protects service members and dependents against foreclosure of mortgages if the four following conditions are met:

1. the relief is sought on financial obligations secured by real or personal property (i.e. security agreements on automobiles or mortgages on real estate) 
2. the obligation originated before active duty by the service member or dependents;
3. the property is still owned by the service member or dependents; and 
4. the member’s/dependent’s ability to make the loan payment is “materially affected” by the member’s military service.

In foreclosure actions, the court shall either stay the foreclosure proceedings or order other equitable relief (i.e. extension of the loan maturity date, decreased payments, etc.)

Installment Contracts.  TheSSCRA also protects service members from creditors repossessing property, rescinding contracts, or imposing penalties without first obtaining a court order for members who signed an installment contract for the purchase of real or personal property if the following three conditions are met: 

1. the installment contract originated prior to active duty;
2.  the service member paid a deposit or installment payment prior to service; and
3. the member’s ability to make payments is “materially affected” by the member’s military service.

Again, courts will generally stay the repossession or rescission, or provide other equitable relief where ability to make installment payments is “materially affected” by military service. 

Taxes.  Military income and a service member’s personal property will only be taxed by the member’s state of domicile.  For personal property taxation, the property will be deemed to be located in the member’s state of domicile

The SSCRA tax protections do not apply to non-military income earned in the non-domiciliary state.  For example, if a service member has a second, part-time job, that income is openly taxable.  In addition, some states have used the service member’s military income to increase the tax liability of the nonmilitary spouse.  Such practices have been upheld in courts.

Professional Liability Protections.   Doctors, and other professionals designated by SECDEF, with liability insurance who are ordered to active duty may make a written request to their insurance carriers to suspend insurance coverage.  During the suspension period, no premium will be charged, refunds will be made for prepayments, and members will have 30 days after the completion of active duty to reinstate the policy.  The insurance carrier must reinstate the policy, and the premiums may not be increased.  Additionally, malpractice actions are stayed.

Maximum Rate of Interest Protection.   Individuals entering active duty are entitled to invoke the 6% maximum interest rate per year for debts and obligations incurred prior to military service.  This protection applies to interest on mortgages, car loans, and credit cards.  It does not apply to federal Guaranteed Student Loans.

The Legal Assistance Department can help you lower your interest rate.  All you need to do is bring a copy of your enlistment contract and all of your creditor’s information (i.e. name, address and account number) to the Legal Assistance office.  An appropriate letter will be drafted and sent to your creditor.