25 Mar In the Armed Services? The Servicemembers Civil Relief Act May Help You Avoid Bankruptcy! (Part Two of Three)
In this second 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 while they are on active duty.
One of the fundamental aspects of the United States court system is the right to have notice of a lawsuit that been filed against you and the right to defend that lawsuit.
If an enlisted person is on active duty, then it is often likely that the service member will not be served with proper notice of a legal notice of a proceeding filed against him.
The SCRA requires the court or administrative agency that has authority over the proceeding (known as Jurisdiction)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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