In the Armed Services? The Servicemembers Civil Relief Act May Help You Avoid Bankruptcy! (Part Two of Three)

25 Mar In the Armed Services? The Servicemembers Civil Relief Act May Help You Avoid Bankruptcy! (Part Two of Three)

Service Members 2In Part One of this series, we discussed in general terms howthe Servicemembers Civil Relief Act (SCRA), both before and after it’s amendment could serve as a possible alternative to bankruptcy.

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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I've been a consumer bankruptcy lawyer for nearly 25 years. Since that time I have helped many people resolve their financial problems. I have been practicing law since 1986 and I am licensed to practice in all state and federal courts in the State of Louisiana. Because I am a sole practitioner, you know that your debt matters are being handled by me personally. In addition to my work with consumers, I am also frequently asked to speak at local seminars on bankruptcy law. I am member of the following organizations: • Louisiana Bar Association • National Association of Consumer Bankruptcy Attorneys • Bankruptcy Law Network My office is located at: 3920 General DeGaulle Drive, New Orleans, LA 70114 Telephone: (504) 368-4101

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