The Rights of Members of the Armed Forces in a Civil Suit (with Flow Chart)
If a defendant is in the military services, what can be done?
Where a defendant is or was in the military during relevant times, the court can grant a stay of proceedings (suspension of any action) in civil cases for a minimum of 90 days if the court finds that (1) there may be a defense and the defense cannot be presented without the presence of the defendant; or (2) after “due diligence” counsel has been unable to contact the defendant or determine if a worthy defense exists. The request may be made at any stage of the proceedings prior to final judgment and one can apply for additional stay based on a continuing material affect of their duty. SERVICEMEMBERS CIVIL RELIEF ACT (“SCRA”)
If default judgment has already been entered against the Servicemember
A default judgment (aka default order) is entered by the court when the plaintiff wins the case because the defendant does not file acknowledgement of service, make appearance, or enter a defense.
The SCRA allows a servicemember who has not entered an appearance in the proceeding to seek the reopening of a default judgment. If a default judgment was entered against a servicemember during their time of service or within 60 days after release, the judgment can be “vacated” or “set aside” and the court can reopen the case to allow for the servicemember to defend if (1) the servicemember was ‘materially affected’ by their service in making a defense; and (2) the servicemember has a meritorious, legal or factual defense to the action. “[A]n application [to set aside a default judgment] . . . must be filed not later than 90 days after the date of termination of or release from military service.”
‘Materially affected’ means the impairment of ability to pay a financial obligation or to participate in a civil suit because of service duties. For example, in a foreclosure action, your active duty may have materially affected your ability to satisfy your mortgage payments. Celia Deifik Foreclosure Defense
When no appearance by servicemember is made an EASY-TO-FOLLOW FLOW CHART can be viewed on page 15 of the PDF article by Mark E. Sullivan located at the following site: SCRA Flow Chart.
You will require counsel in the county in which you were sued. However, if you have been sued and are a member of the military or any other form of the United States Armed Forces or commissioned member of any of the services such the Public Health Service and the National Oceanographic and Atmospheric Administration, you might also inquire about your rights of the legal advisors in command known as Judge Advocate General’s Corp (JAG).
This information is not legal advice and the law and information provided herein may not be applicable to your particular circumstances. Further, remember the laws are always subject to change!
