In the Armed Services? The Servicemembers Civil Relief Act May Help You Avoid Bankruptcy! (Part Two of Four)
By Kevin Gipson, New Orleans Bankruptcy Attorney on Mar 25, 2007 in Foreclosure Issues, General Bankruptcy Information, Louisiana, Personal Finance
In Part One of this series, we discussed in general the Servicemembers Civil Relief Act (SCRA).
In this part, we will discuss what is probably the most common use of the SCRA: to stay or delay legal proceedings against members of the armed forces.
In cases where the service member lacks legal notice of a proceeding, the SCRA requires the court or administrative agency to grant a stay (continue the proceeding) for at least 90 days if the court finds that a proper defense cannot be presented without the defendant’s presence.
Even if the service member has notice of the proceeding, he is still entitled to a mandatory 90 day stay if he sends a letter stating how his current duty prevents him from appearing and gives a date when he can appear, or if the service members commanding officer sends a similar communication stating that the military duty prevents an appearance and that leave is not authorized for the service member.
Additional stays may also be sought and if the additional stay(s) are refused by the court, the court must then appoint an attorney to represent the service member in the action or proceeding.
The stay provision of the SCRA is a powerful tool to protect a service member from actions by creditor’s while the service member is on active duty.
In Part Three we will discuss how interest rates can be adjusted under the SCRA.
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