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Soldier's and Sailor's Civil Relief Act Protects Those on Military Duty
By: Cheryl Morrissey, Esq.
Since World War I, our federal and state governments have recognized the need to temporarily protect military personnel from certain legal matters. The public policy goal is to ensure that our Soldiers, Sailors, and Marines can attend to their military duties free from worry about civil court proceedings on the homefront.
The Congress and the New Jersey legislature have enacted statutes known as Soldier's and Sailor's Civil Relief Acts. They differ slightly, but both provide, generally, the same relief. Given our ongoing "war against terrorism", the provisions of these laws should be noted by those who are in the military or who are creditors of those in the military. Violation of some parts of these laws are criminal offenses punishable by incarceration and fines.
Participation in Court Proceedings
New Jersey's SSCRA says that no judgment or final order may be entered in any civil court while the defendant is in the service, unless the judge appoints an attorney to represent the defendant. An appointed attorney's authority is limited, however. It is also possible for a Court to require that a plaintiff seeking a judgment against a military defendant post a bond. The bond would be used to indemnify a defendant against an order or judgment that may end up being set aside when the defendant returns home.
Statutes of Limitations
Soldiers and sailors are generally protected from statutes of limitations. They do not run against those on active military duty.
Stay of Proceedings
Courts may stay any civil action in which a soldier or sailor is involved during the period of that person's military service and for sixty days thereafter. A stay of proceedings is up to the Court's discretion, though, and may not be granted if the judge believes that the prosecution or defense of the case is not materially affected by reason of the military service.
Signs and Penalties
Military personnel can be relieved by a Court from fines or penalties that accrue for non-performance of some contracts if military service materially impaired the ability of the soldier or sailor to pay or perform.
Interest Rate Caps
There are also interest rate caps on pre-service obligations if active military duty materially affects the soldier's or sailor's ability to pay the debt. The rate cap is currently 6% under the federal law. This provision is particularly significant because military personnel can use it to demand reductions on everything from credit card interest rates to commercial loan rates to mortgage interest rates. Reservists who are called up are the people most likely to have their ability to pay "materially affected" by military duty.
If a soldier's or sailor's ability to make mortgage payments is materially affected by active military duty, a mortgagee may not foreclose without a Court order. Foreclosure proceedings will be stayed or the Court will dispose of the case in an "equitable" way.
Real Estate Agreements
Unless a court approves, a seller of real estate is prohibited from rescinding or terminating a purchase contract if the buyer signed the contract and paid a deposit or made an installment payment before being called to active military duty. With regard to leases, a soldier or sailor may terminate pre-duty obligations on commercial or residential properties without penalty. A landlord may not evict an active military member from commercial or residential property when the rent is $1200 a month or less without a Court order. Courts are empowered to stay evictions, among other remedies.
Cheryl Morrissey, is a Partner at WJ&L, LLP, and practices in the Litigation area. Cheryl is also a "proud Army brat"!