The Servicemembers Civil Relief Act (SCRA): Summary and Proposed Amendments
The Servicemembers Civil Relief Act (SCRA):
Summary and Proposed Amendments
Updated August 22, 2008
R. Chuck Mason
American Law Division
The Servicemembers Civil Relief Act (SCRA):
Summary and Proposed Amendments
Recognizing the special burdens that members of the military may encounter
trying to meet their financial obligations while serving their country, in 1940
Congress passed the Soldiers’ and Sailors’ Civil Relief Act (SSCRA). The law was
amended from time to time, ordinarily in response to military operations that
required the activation of the Reserves. P.L. 108-189, the Servicemembers Civil
Relief Act (SCRA), was enacted on December 19, 2003 as a modernization and
restatement of the protections contained in the SSCRA. Much like with the SSCRA,
the SCRA has been amended since its initial passage and proposed changes continue
to be introduced in Congress. This report summarizes the rights granted to persons
serving on active duty in the U.S. Armed Forces under the SCRA.
The SCRA provides protections for servicemembers in the event that their
military service impedes their ability to meet financial obligations incurred before
entry into active military service. Forgiving of all debts or the extinguishment of
contractual obligations on behalf of servicemembers who have been called up for
active duty are not required, nor is absolute immunity from civil lawsuits provided.
Instead, the act suspends civil claims against servicemembers and protects them from
default judgments. The SCRA includes provisions that prohibit the eviction of
military members and their dependents from rental or mortgaged property; create a
cap on interest at 6% on debts incurred prior to an individual entering active duty
military service; protect against the cancellation of life insurance or the non-
reinstatement of health insurance policies; allow some professionals to suspend
malpractice or liability insurance while on active duty; and proscribe taxation in
multiple jurisdictions and forced property sales in order to pay overdue taxes.
The rights and protections afforded servicemembers under the SCRA continues
to draw the attention of Congress. In the 110th Congress, more than 20 bills have
been introduced proposing amendments, covering such topics as housing, credit
rating, service contracts, educational benefits, jurisdictional concerns, and child
custody. Housing, including mortgage and foreclosure protections, and child custody
are the two predominant themes of the proposed amendments.
In troduction ..................................................1
Title I: General Provisions.......................................3
Jurisdiction and applicability of act............................5
Protection of persons secondarily liable........................5
Extension of protections to citizens serving with allied forces.......6
Notification of benefits.....................................7
Extension of rights and protections to Reserves ordered to report
for military service and to persons ordered to report
Waiver of rights pursuant to written agreement...................7
Exercise of rights under act not to affect certain
future financial transactions..............................7
Title II: General Relief..........................................8
Protection of servicemembers against default judgments...........8
Stay of proceedings when servicemember has notice..............9
Fines and penalties under contracts...........................10
Stay or vacation of execution of judgments, attachments,
Duration and term of stays; co-defendants not in service..........11
Statute of limitations......................................11
Maximum rate of interest on debts incurred
before military service.................................11
Title III: Rent, Installment Contracts, Mortgages, Liens,
Evictions and distress......................................13
Protection under installment contracts for purchase or lease........13
Mortgages and trust deeds..................................13
Settlement of stayed cases relating to personal property...........14
Termination of residential or motor vehicle leases...............14
Protection of life insurance policy............................15
Enforcement of storage liens................................16
Extension of protections to dependents........................16
Title IV: Life Insurance........................................16
Insurance rights and protections.............................17
Application for insurance protection..........................17
Policies entitled to protection and lapse of protections............17
Deduction of unpaid premiums..............................18
Premiums and interest guaranteed............................18
Review of findings of fact and conclusions of law...............18
Title V: Taxes and Public Lands.................................18
Taxes respecting personal property, money, credits,
and real property.....................................18
Rights in public lands.....................................19
Mineral permits and leases..................................19
Perfection or defense of rights...............................20
Distribution of information concerning benefits of title...........20
Land rights of servicemembers..............................20
Residence for tax purposes.................................20
Title VI: Administrative Remedies...............................21
Inappropriate use of act....................................21
Certificates of service; persons reported missing................21
Title VII: Further Relief........................................21
Power of attorney.........................................22
Professional liability protection..............................22
Health insurance reinstatement..............................24
Guarantee of residency for military personnel...................24
Business or trade obligations................................24
The SCRA in the 110th Congress.................................25
Jurisdiction and civil enforcement............................26
The Servicemembers Civil Relief Act
(SCRA): Summary and
I ntr oducti on1
The Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA) provided civil
protections and rights to individuals based on their service in the U.S. armed forces.
On December 19, 2003, Congress enacted P.L. 108-189, the Servicemembers Civil
Relief Act (SCRA), in response to the increased utilization of Reserve and National
Guard military units in the Global War on Terrorism, and as a modernization and
restatement of the protections and rights previously available to servicemembers2
under the SSCRA. Much like with the SSCRA, the SCRA has been amended since
its initial passage and proposed changes continue to be introduced in Congress.
Congress has long recognized the need for protective legislation for
servicemembers whose service to the nation compromises their ability to meet
obligations and protect their legal interests. During the Civil War, Congress enacted
an absolute moratorium on civil actions brought against soldiers and sailors. During
World War I, Congress passed the Soldiers’ and Sailors’ Civil Relief Act of 1918,3
which did not create a moratorium on legal actions against servicemembers, but
instead directed trial courts to apply principles of equity to determine the appropriate
action to take whenever a servicemember’s rights were involved in a controversy.
During World War II, Congress essentially reenacted the expired 1918 statute as the
Soldiers’ and Sailors’ Civil Relief Act of 1940, and then amended it substantially in
between the wars. Congress enacted amendments on several occasions during
1 Portions of this report were originally prepared by Estela I. Velez Pollack, a former
legislative attorney in the American Law Division.
2 See H.Rept. 108-81, at 32 (April 30, 2003). See also, S.Rept. 108-197, at 9 (November 17,
2003) (stating that the military had activated approximately 300,000 Reserves since
September 2001, and that a DOD survey indicated that the self-employed Reservists
reported an average $6,500 in lost income when mobilized or deployed).
3 40 Stat. 440 (1918).
4 H.Rept. 108-81, at 33 (April 30, 2003) (quoting statement by Congressman Overton
Brooks (D-LA) on the floor of the House during consideration of amendments to SSCRA:
“This bill springs from the desire of the people of the United States to make sure as far as
possible that men in service are not placed at a civil disadvantage during their absence. It
springs from the inability of men who are in service to properly manage their normal
business affairs while away. It likewise arises from the differences in pay which a soldier
subsequent conflicts, including 2002 when the benefits of the SSCRA were extended
to certain members of the National Guard.5 In 2003, Congress enacted the SCRA as
a modernization and restatement of the SSCRA and its protections.
The SCRA6 is an exercise of Congress’s power to raise and support armies (U.S.
Const. Art. I, sec. 8, cl. 12) and to declare war (Art. I, sec. 8, cl. 11).7 The purpose
of the act is to provide for, strengthen, and expedite the national defense by
protecting servicemembers, enabling them to “devote their entire energy to the
defense needs of the Nation.”8 The SCRA protects servicemembers by temporarily
suspending certain judicial and administrative proceedings and transactions that may
adversely affect their legal rights during military service. Forgiving of all debts or
the extinguishment of contractual obligations on behalf of servicemembers who have
been called up for active duty is not required, nor is absolute immunity from civil
lawsuits provided. Instead, it provides for the suspension of claims and protection
from default judgments. In this way, it seeks to balance the interests of
servicemembers and their creditors, spreading the burden of national military service
to a broader portion of the citizenry.
Many of the SCRA provisions are especially beneficial for Reservists activated
to respond to a national crisis, but many provisions are also useful for career military
personnel.9 One of the measures that affects many who are called to active duty is
the cap on interest at an annual rate of 6% on debts incurred prior to a person’s entry
into active duty military service (Section 207). Other measures protect military
families from being evicted from rental or mortgaged property (Sections 301 and
303); from cancellation of life insurance (Sections 402 through 409); from taxation
in multiple jurisdictions (Sections 510 and 511); from foreclosure of property to pay
receives and what the same man normally earns in civil life.” Cong. Rec. H.5553 (June 11,
5 P.L. 107-330, 116 Stat. 2820 (December 6, 2002) (Extending benefits of SSCRA to
members of the National Guard called up by their respective state governors to support
federal efforts during national emergencies (including the war against terrorism)).
6 One of the amendments effected by P.L. 108-189 is the change in the name of the act from
Soldiers’ and Sailors’ Civil Relief Act (SSCRA) to Servicemembers Civil Relief Act
(SCRA). The name of the act was changed to the more inclusive SCRA “because soldiers,
sailors, marines and airmen are collectively referred to as “servicemembers” in other
statutes” (H.Rept. 108-89, at 35 (April 30, 2003)). Therefore, all of the historical and legal
background of this act makes reference to SSCRA instead of SCRA. This report will use
the current name of the act, SCRA, when making reference to any historical or legal
7 Dameron v. Brodhead, 345 U.S. 322 (1953).
8 50 U.S.C. app. § 502.
9 See James P. Pottorff, Contemporary Applications of the Soldiers’ and Sailors’ Civil Relief
Act, 132 MIL. L. REV. 115, 118 (1991) (noting that many protections are ordinarily
unavailable to career servicemembers because they enter into most major legal and financial
obligations, such as mortgages, while on active duty).
taxes that are due (Sections 501 and 511); and from losing certain rights to public
land (Sections 501 through 508).
This report provides a section by section summary of SCRA, codified in 50
U.S.C. app. § 502 et seq., and considers recent proposals to amend it.
Title I: General Provisions
Definitions. Sec. 101 (50 U.S.C. app. § 511). For the purposes of the SCRA,
the following definitions apply:
‘Servicemember’. Persons covered by the SCRA include members of the
“uniformed services” found in 10 U.S.C. § 101(a)(5), which includes the Army,
Navy, Air Force, Marine Corps, Coast Guard, and the commissioned corps of the
National Oceanic and Atmospheric Administration and the Public Health Service.
‘Military Service’. “Military service” includes “active duty” as defined in 10
U.S.C. § 101(d)(1); National Guard service as service under a call to active service
authorized by the President or the Secretary of Defense for a period more than 3010
consecutive days under 32 U.S.C. § 502(f) for purposes of responding to a national
emergency declared by the President and supported by federal funds; for officers of
the Public Health Service or the National Oceanic and Atmospheric Administration,
“active service” (not further defined); and any period during which a servicemember11
is absent from duty on account of sickness, wounds, leave, or other lawful case.
“Active duty” for armed services is defined in 10 U.S.C. § 101(d)(1) as “full-
time duty in the active military service of the United States ... [including] full-time
training duty, annual training duty, and attendance, while in the active military
service, at a school designated as a service school by law or by the Secretary of the12
military department concerned.” “Active military service” is not further defined in
Section 101 of Title 10, U.S. Code, although “active service” is given the meaning
“service on active duty or full-time National Guard duty,” in § 101(d)(3).
Under the prior law the definition of “military service” included language
referring to “periods of training or education under the supervision of the United
10 32 U.S.C. § 502(f) states that under regulations from the Secretary of the Army or the
Secretary of the Air Force, a member of the National Guard may be ordered to perform
training or other duty in addition to the mandatory yearly training.
11 See Donahou v. Presidential Limousine & Auto Sales, Inc., 2007 U.S. Dist. LEXIS 30257
(W.D. Ark. April 24, 2007) (finding that individual who enlisted in the military through a
delayed entry program is not in the “military service” while participating in the delayed
entry program. Therefore a contract concluded while in the program is not covered because
it is treated under the SCRA as a pre-service contract.).
12 10 U.S.C. § 2151 defines service school to include the following: The Army War College,
The College of Naval Warfare, The Air War College, The Marine Corps War College, The
United States Army Command and General Staff College, The College of Naval Command
and Staff, The Air Command and Staff College, and The Marine Corps Command and Staff
States preliminary to induction into military service.” Under the SCRA, persons on
active duty and attending a service school are covered, while persons attending
training prior to entering active duty, such as officer candidates, may not be covered.
It is unclear, for example, whether “active military service” under 10 U.S.C. § 101(d)
covers training as a member of the Reserve Officer Training Corps13 or attendance
at a military academy.14
‘Period of military service’. A servicemember’s “period of military service”
begins when he or she enters military service and ends on the date of release from
military service or upon death during military service.
‘Dependent’. “Dependent” is defined as a servicemember’s spouse or child15
(as defined for purposes of veterans’ benefits, in 38 U.S.C. § 101), or another
individual for whom the servicemember provided more than one half of the support
in the 180 days prior to an application for relief under the act. This language appears
to codify courts’ treatment of the term “dependent” as relating to financial16
dependency rather than strict familial relationships.
13 See Brown v. United States, 151 F.3d 800 (8th Cir. 1998) (finding that senior ROTC
training activities are “active military service” under the Veterans Benefits Act).
14 The question does not appear to have been tested in court, possibly due to the unlikelihood
that a person attending a service academy would be materially affected by such status. The
law, 37 U.S.C. § 203, provides that cadets of the military academies receive compensation
at a rate of 35% of the O-1 paygrade. Upon graduation and acceptance of their commission
in the active military service, their pay increases to full O-1 paygrade. Therefore, it would
be unlikely that a cadet would be able to claim that entering active duty had a material affect
on his or her ability to pay preexisting debts. In contexts other than the SCRA, military
cadets have been considered to be in active military service for some purposes. See Collinsth
v. United States, 642 F.2d 217, 220-21 (7 Cir.), cert. denied 452 U.S. 964 (1981) (finding
a cadet at the Air Force Academy to be on active duty for purposes of applying the Feres
doctrine to prohibit his bringing suit against the government); Porath v. McVey, 884 S.W.2d
692 (Mo.App.S.D.1994) (West Point cadet was considered to be on active duty for the
purpose of determining whether he was “emancipated” under state law, for child support
purposes); Minnich v. World War II Service Compensation Bd., 57 N.W.2d 803 (Iowa 1953)
(plaintiff awarded military bonus for time during World War II as military cadet based on
definition of “active duty” that included “active service” at an “armed forces school”).
15 38 U.S.C. § 101(4) defines child as a person who is unmarried and under the age of
eighteen; who before attaining the age of eighteen became permanently incapable of self-
support; or who after attaining the age of eighteen and until completion of education or
training (but not after attaining the age of twenty-three) is pursuing a course of instruction
at an approved educational institution; and who is a legitimate child, a legally adopted child,
a stepchild who is a member of a veteran’s household or was a member at the time of the
veteran’s death, or an illegitimate child but, as to the alleged father, only if acknowledged
in writing signed by him, or if he has been judicially ordered to contribute to the child’s
support or has been, before his death, judicially decreed the father of such child, or if he is
otherwise shown by evidence to be the father of the said child.
16 See, e.g., Balconi v. Dvascas, 507 N.Y.S. 2d 788 (N.Y. Civ. Ct. 1986)(finding ex-spouse
of serviceman who relied on his child support payments to be a “dependent” within the
meaning of the SCRA who could assert the protection against eviction).
‘Court’. The term “court” includes federal and state courts and administrative
agencies, whether or not a court or agency of record.
‘State’. “State” includes commonwealth, territory, or possession of the United
States and the District of Columbia.
‘Secretary Concerned’. With respect to a member of the armed forces,
“secretary concerned” refers to the meaning in 10 U.S.C. § 101(a)(9)17; with respect
to commissioned officers of the Public Health Service, the Secretary of Health and
Human Services; and with respect to commissioned officers of the National Oceanic
and Atmospheric Administration, the Secretary of Commerce.
‘Motor Vehicle’. “Motor vehicle” is a vehicle driven or drawn by mechanical
power and manufactured primarily for use on public streets, roads and highways, but
does not include a vehicle operated only on a rail line (as defined in 49 U.S.C. §
‘Judgment’. “Judgment” includes any judgment, decree, order, or ruling, final
Jurisdiction and applicability of act. Sec. 102 (50 U.S.C. app. § 512).
The SCRA applies everywhere in the United States, including the District of
Columbia, and in any territory “subject to the jurisdiction of” the United States. It
applies to any civil judicial or administrative proceeding in any court or agency in
any jurisdiction subject to the act. However, it does not apply to criminal
Protection of persons secondarily liable. Sec. 103 (50 U.S.C. app. §
513). Protection is extended to persons who share a debt with one or more covered
servicemembers or have secondary liability as a “surety, guarantor, endorser,
accommodation maker, co-maker, or other person who is or may be primarily or
secondarily subject to the obligation or liability” at issue. If the SCRA provisions are
invoked as to the servicemember, the court has discretion to grant a stay,
postponement, or suspension of the proceedings against such persons, or to set aside
or vacate a judgment. Whether a court grants such relief appears to be influenced by
equitable considerations, including whether the servicemember is able to appear in
court, whether the servicemember’s presence is necessary for the defense, and
whether an unjust forfeiture could otherwise result. If the servicemember is only
17 10 U.S.C. § 101(a)(9) defines “Secretary” as the Secretary of the Army with respect to
Army matters; the Secretary of the Navy with respect to matters concerning the Navy,
Marine Corps, and the Coast Guard when it is operating as a service of the Department of
the Navy; the Secretary of the Air Force with respect to matters concerning the Air Force;
and the Secretary of Homeland Security with respect to matters concerning the Coast Guard
when it is not operating as a service in the Department of the Navy.
18 P.L. 108-454, 118 Stat. 3598 (December 10, 2004) (The definition of the term
“judgment” was added by Title VII of the Veterans Benefits Improvement Act of 2004,
titled Improvements to Servicemembers Civil Relief Act).
nominally a party to the suit, as in cases of negligence where the insurance company
might be considered the “true defendant,” the modern trend is to deny a stay.19
The act added the term “co-maker”20 to the list of persons who may be entitled
to a stay in an action which has been stayed with respect to a servicemember. This
effectively codifies courts’ interpretations of the previous version of the SCRA.21
However, it does not explicitly adopt the test some courts have used to determine
whether a stay is appropriate.
Bail bondsmen who are unable to procure the appearance of the principal due
to that person’s active duty service receive protection under the act. In such a case,
the court hearing the charge may not enforce the bond during the period of military
service of the accused, and has the discretion to return the bail in its entirety to the
bail bondsman in the interest of equity and justice. While some courts have
interpreted this subsection to allow for no discretion,22 others have required sureties
to make a further showing that the appearance of the principal was in fact prevented
due to military service and that the surety made an effort to secure the appearance of
the principal in court.23
Persons who are primarily or secondarily liable on the obligation of a person in
military service may waive their rights under the SCRA, but such a waiver must be
executed in a separate instrument from that which creates the obligation. If the
individual executes the waiver and then enters active military service, the waiver as
applied to the individual, or to the dependents of the person, is invalidated. In the
event that the waiver is executed after the person receives orders to active duty, but
before entering active service, the waiver remains valid.
Extension of protections to citizens serving with allied forces. Sec.
104 (50 U.S.C. app. § 514). Citizens of the United States who serve in the armed
forces of allies of the United States in the prosecution of a war or military action, as
long as such service is similar to the service in the U.S. armed forces, are protected
under the act.
19 See Tabor v. Miller, 369 F.Supp. 647 (D. Pa.), aff’d, 389 F.2d 645 (3d Cir.), cert. denied
sub nom Stearns v. Tabor, 391 U.S. 915 (1968) (where servicemember did not claim he was
precluded by service from appearing and his insurer had rejected an offer to settle within the
limits of the policy, stay of proceedings was denied).
20 A co-maker is “one of two or more persons who sign an instrument to indicate a promise
to pay a financial obligation. Any co-maker may be sued for the entire amount of the
indebtedness, although a co-maker who is forced to pay more than his or her share may seek
contribution from the other co-makers.” MERRIAM-WEBSTER’S DICTIONARY OF LAW
21 Modern Industrial Bank v. Zaentz, 29 N.Y.S.2d 969 (N.Y.Mun.Ct. 1941); Modern
Industrial Bank v. Grossman, 40 N.Y.S.2d 628 (1943).
22 See United States v. Jeffries, 140 F. 2d 745 (7th Cir. 1944).
23 See Ex parte Moore, 12 So.2d 77 (Ala. 1943); Cumbie v. State, 367 S.W.2d 693 (Tex.
Civ. App. 1963).
Notification of benefits. Sec. 105 (50 U.S.C. app. § 515). Military
authorities are required to provide servicemembers with written information of their
rights and benefits under the SCRA.
Extension of rights and protections to Reserves ordered to report
for military service and to persons ordered to report for induction. Sec.
106 (50 U.S.C. app. § 516). Benefits under Titles I, II, and III of the SCRA are
applicable to servicemembers during the period of time between the date they receive
their induction or activation orders and the date they report for active duty. The
coverage ends in the event the orders to active duty are revoked.
Waiver of rights pursuant to written agreement. Sec. 107 (50 U.S.C.
app. § 517). Servicemembers may waive some of the benefits of the SCRA by
agreeing to modify or terminate a contract, lease or bailment, or an obligation secured
by a mortgage, trust, deed, lien, or other security in the nature of a mortgage. In order
for the waiver to be effective, it must be executed during or after the
servicemember’s period of active military service. The written agreement must
specify the legal instrument to which the waiver applies and, if the servicemember
is not a party to that instrument, the identity of the servicemember concerned. This
section extends the protections to servicemembers covered under Section 106 of the
act (reservists ordered into active duty and persons ordered to report for induction).
The act was amended in 2004 to include two additional requirements for a
waiver to be effective.24 The first requirement is that it must be executed separate
from the legal instrument to which it applies. The second is that it must be in at least
Exercise of rights under act not to affect certain future financial
transactions. Sec. 108 (50 U.S.C. app. § 518). Servicemembers are protected
from any penalty imposed solely due to their invocation of rights under the SCRA.
In other words, a lender cannot revoke a covered person’s credit card or exercise
foreclosure rights because the servicemember requests the rate of interest be capped
at 6% pursuant to the SCRA. It provides that no stay, postponement, or suspension
of any tax, fine, penalty, insurance premium, or other civil obligation or liability
applied for, or received by, a person in military service can be the sole basis for any
of the following:
(1) a determination by a lender (or other person) that the servicemember is
unable to pay the civil obligation or liability;
(2) a decision by a creditor to deny or to revoke credit; to change the terms of
an existing credit arrangement; or to refuse to grant credit in substantially the
amount, or on substantially the terms, requested;
(3) an adverse creditworthiness report by, or to, a consumer credit information
(4) an insurer’s refusal to sell insurance coverage;
24 P.L. 108-454, 118 Stat. 3598 (December 10, 2004).
(5) an annotation by the creditor or a person engaged in the practice of
assembling or evaluating consumer credit information, to reference the
servicemember’s military status on his or her credit report; or,
(6) a change in the terms offered or conditions required for issuance of insurance.
Creditors may, however, take adverse action against a servicemember who fails
to comply with obligations after they are adjusted by reason of the act. The act does
not appear to preclude insurers or creditors from offering different terms or
conditions, denying credit, or taking other adverse actions based solely on the
servicemember’s status in anticipation that the servicemember might later invoke a
right under the act.
Legal representatives. Sec. 109 (50 U.S.C. App. § 519). Legal
representatives, such as attorneys or persons possessing a power of attorney, may
assert the benefits of the act when acting on the servicemember’s behalf.
Title II: General Relief
Sections 201 through 207 describe the general relief available in most kinds of
court actions. They serve to suspend civil liabilities of military personnel and
preserve causes of action either for or against them.
Protection of servicemembers against default judgments. Sec. 201
(50 U.S.C. app. § 521). In a civil lawsuit, the failure of the defendant to appear in
court may result in the award of a default judgment on behalf of the plaintiff. When
a default judgment is entered in favor of the plaintiff, it is done without consideration
on the merits of the case. Under the act, servicemembers are protected from default
judgments in civil actions, including any child custody proceeding, when they are
unable to appear in court due to military service. An amendment to the act in 2008,25
added language clarifying that civil lawsuits include child custody proceedings.
Before a court can grant a default judgment, a plaintiff must file an affidavit
stating that the defendant is not on active duty in military service showing necessary
facts to support the affidavit26 or that the plaintiff was unable to determine whether
or not the defendant is in military service. A false affidavit to that effect is
punishable by imprisonment for up to one year, a fine of up to $1,000, or both. The
court, before entering a judgment, must also appoint an attorney to represent the
person on active duty in order to protect his or her legal rights and interests.
However, if the attorney appointed to the case cannot locate the servicemember,
actions by the attorney would not waive any defenses or otherwise bind the
servicemember. Additionally, if the court is unable to determine if a defendant is in
military service, the court may require a bond which may later be used to indemnify
the defendant if it is determined that he or she was in military service and the
judgment against the defendant is set aside or vacated in part. Moreover, if a court
25 P.L. 110-181, 122 Stat. 128 (January 28, 2008).
26 This requirement may be satisfied by a statement, declaration, verification, or certificate,
in writing, under oath.
enters a default judgment against a servicemember, the court may set aside its
judgment if the servicemember files a motion within 60 days after leaving active
military service and can demonstrate that military service prejudiced his or her
availability to appear in court (unless the default was based on a false affidavit by the
plaintiff regarding military service of the defendant, in which case such a showing
is unnecessary) and that there are meritorious or legal defenses to the suit.
This section does not provide a means to challenge judgments resulting from
cases in which the servicemember made an appearance before the court. Some courts
have found that a communication to the court regarding the servicemember’s military
status, and the resulting applicability of the SCRA to the suit, constitutes an
appearance and bars asserting certain defenses,27 such as a lack of jurisdiction, and
negates the right to petition to have the judgment overturned. An informal
communication, such as a letter or a telegram to the court asking for protection under
the SCRA should not be counted as an appearance,28 but some courts have found that
a letter from a legal assistance attorney constitutes an appearance, waiving the
servicemember’s protection against a default judgment.29 An appearance by
defendant’s counsel may also waive protection, unless the counsel was appointed
pursuant to this section.
Subsection (h) contains a provision to protect the rights of a bona fide purchaser
by stating that vacating, setting aside, or reversing any judgment under the act will
not impair any right or title acquired by any bona fide purchaser for value under the
judgment. Therefore, it may be impossible to recover property that had been attached
to satisfy a default judgment, although the servicemember would have the right to
damages for the value of the property.
Stay of proceedings when servicemember has notice. Sec. 202 (50
U.S.C. app. § 522). A court must stay further proceedings in civil litigation, including
any child custody proceeding, where the servicemember’s ability to participate in the30
litigation, as either the plaintiff or the defendant, is materially affected by absence
due to military service. It applies to servicemembers who are in military service or
within 90 days after termination or release from military service. An amendment to
27 See Blankenship v. Blankenship, 263 Ala. 297, 82 So. 2d 335 (1978); Vara v. Vara, 14
Ohio 2d 261, 171 N.E.2d 384 (1961); Reynolds v. Reynolds, 21 Cal. 2d 580, 134 P.2d 251
28 See Kramer v. Kramer, 668 S.W. 2d 457 (Tex. Ct. App. 1984) (letter from servicemember
invoking the SCRA and requesting a stay did not constitute an “appearance” for the purpose
of providing personal jurisdiction); see generally The Judge Advocate General’s Legal
Center & School, U.S. Army, JA 260, Servicemembers Civil Relief Act [§ 3-2][hereinafter
29 See Skates v. Stockton, 682 P.2d 304 (1984) (holding that a letter to the trial court from
a legal assistance attorney requesting a stay constituted an appearance and therefore waived
the servicemember’s protections from a default judgment).
30 P.L. 108-454, 118 Stat 3598 (December 10, 2004) (added the words “plaintiff or” before
“defendant” in the introductory statement of the section. The former SSCRA contained both
terms “plaintiff” and “defendant,” but prior to the 2004 amendment to the SCRA, the term
“plaintiff” had been omitted).
the act in 2008,31 added language clarifying that civil lawsuits includes child custody
The servicemember must set forth, in the application for a stay, facts stating the
manner in which current military duty requirements materially affect the ability to
appear and state a date when he or she will be able to appear. Additionally, the
servicemember must submit a letter from his/her commanding officer certifying that
leave is not authorized to attend proceedings at that time. While a stay is a
reasonable imposition upon an individual citizen on behalf of those discharging their
obligations to the common defense, it is not available to shield wrongdoing or lack
of diligence or to postpone relief indefinitely, or to be used to stay proceedings in
matters where the interests or safety of the general public may be at stake. Courts
may deny a stay in cases involving purely legal issues or where the servicemember
is not the true party in interest or in which presence of the individual is not
A request for a stay under this section does not constitute an appearance for
jurisdictional purposes or a waiver of any substantive or procedural defense.
Therefore, a servicemember may apply for relief without waiving the right, for
example, to assert that the court has no jurisdiction in the case. Moreover, additional
stays may be granted based on continuing material effect of military duty. If
additional stays are denied, the court must appoint counsel to represent the
servicemember. A servicemember who is unsuccessful in securing a stay under this
section is precluded from seeking the protections against default judgments granted
under Section 201. This section is inapplicable to Section 301 (protection from
eviction or distress).
Fines and penalties under contracts. Sec. 203 (50 U.S.C. app. § 523).
Whenever an action is stayed by the court pursuant to the SCRA, penalties that would
otherwise accumulate against the person for failing to carry out the terms of the
contract cannot be imposed during the period the stay remains in effect. In the
absence of a stay, the court has discretion to relieve a servicemember of the
obligations to pay fines or penalties for failing to carry out the terms of a contract if
that person’s ability to pay or to carry out the terms is impaired by military service.
Stay or vacation of execution of judgments, attachments, and
garnishments. Sec 204 (50 U.S.C. app. § 524). If a servicemember is materially
affected by reason of service from complying with a court judgment or order, the
court may, on its own motion, and will on the application of the servicemember, stay
the execution of any judgment or order against the servicemember and vacate or stay
an attachment or a garnishment of property, money, or debts in the possession of the
person on active duty for actions or proceedings commenced against the
31 P.L. 110-181, 122 Stat. 128 (January 28, 2008).
32 See Posey v. Lake Pend Oreille Sch. Dist. No. 84, 2007 U.S. Dist. LEXIS 7829 (D. Idaho
February 2, 2007) (Defendants request for a stay of proceedings denied. Court denied
request based on fact that the motion for summary judgment being considered, filed by the
defense, had been fully briefed, and under advisement, prior to co-defendants activation to
servicemember. This section applies to actions brought against the servicemember
before or during the period of military service or within 90 days after termination of
Duration and term of stays; co-defendants not in service. Sec. 205
(50 U.S.C. app. § 525). Stays granted by courts under the SCRA can remain in effect
for the entire period of a servicemember’s military service plus 90 days, or any part
thereof. As a practical matter, however, courts do not look favorably on protracted
stays, and expect most military members to make themselves available to participate
in proceedings within a reasonable period of time, especially during peacetime if the33
servicemember is not stationed abroad. Suits against any co-defendants not in
military service may proceed even if the suit has been stayed with respect to the
person in the military. This section does not apply to Sections 202 (stays for actions
for which the defendant has notice) and 701 (anticipatory relief). These sections
contain their own rules for determining the maximum length of a stay.
Statute of limitations. Sec. 206 (50 U.S.C. app. § 526). In cases in which
a statute of limitations would prohibit any court action with respect to a lawsuit
brought after expiration of the time specified by law, this section tolls (extends) the
time period applicable to a covered servicemember by an amount of time equal to the
person’s period of military service.34 That time is not counted in determining the
servicemember’s deadline for exercising the right to redeem real estate that has been
sold or forfeited to enforce an obligation, tax, or assessment. The section applies not
just to an action or proceeding in a court but also to any federal or state board,
commission, or agency, and may be exercised by the servicemember’s heirs,
executors, administrators, or assigns, regardless of whether the right or cause of
action arose prior to or during the person’s period of military service.35 It does not,
however, apply to federal tax laws.
Maximum rate of interest on debts incurred before military service.
Sec. 207 (50 U.S.C. app. § 527). This section caps the maximum interest charged on
any debt incurred by a servicemember individually or with the servicemembers’
spouse jointly prior to entering active duty at a rate of interest no higher than six
percent (6%) a year, if the servicemember’s ability to pay is materially affected by
33 See Roger M. Baron, The Staying Power of the Soldiers’ and Sailors’ Civil Relief Act, 32
SANTA CLARA L. REV. 137 (1992).
34 See Bretherick v. Crittenden County, 2007 U.S. Dist. LEXIS 20213 (E.D. Ark. March 21,
2007) (Stating that SCRA tolling provision is “crystal clear” in that the period of a
servicemember’s military service may not be included in computing any period limited by
35 See Giel v. Winter, 503 F. Supp 2d 208 (D.D.C. 2007) (Former naval reserve officer
appealed decision by the Board for the Correction of Naval Records denying his request for
a special selection board remedy to reconsider promotion. Secretary of the Navy argued that
claim was time-barred under the Administrative Procedure Act (APA). Court rejected
argument finding that limitations period under the APA was tolled during active duty under
active duty status.36 The interest above the 6% cap is to be forgiven by the creditor
and does not accrue to be owed after the debtor’s release from active duty. The
monthly payments of an obligation or liability covered by this section is to be
reduced by the amount in excess of the 6%, but the terms of the original obligation
are to remain the same. A court may grant a creditor relief from this section if, in the
opinion of the court, the ability of the servicemember to pay a interest rate in excess
of 6% is not materially affected by the military service.
A servicemember who wrongly receives an adverse credit report or has his or
her credit limit reduced or further credit denied after invoking the 6% interest cap
provision may seek relief through the Fair Credit Reporting Act37 (FCRA) provisions
for “adverse actions” and consumer remedies for “willful or negligent noncompliance
by credit reporting agencies upon consumer showing of causal connection between
inaccurate credit report and denial of credit or other consumer benefit.”38
Historically, federally guaranteed student loans were not eligible for the 6%
interest rate cap. Section 428(d) of the Federal Family Education Loan Program,
addressing applicability of usury laws, excluded the SCRA interest rate limitation on
those loans.39 P.L. 110-315, the Higher Education Opportunity Act, amended Section
428(d) to explicitly permit application of the SCRA interest rate cap on federally
guaranteed student loans.40 As of August 14, 2008, federally guaranteed student
loans are treated like all other debts incurred prior to entering active duty. Loans
disbursed prior to enactment of the amendment are not covered and therefore are not
subject to the 6% interest rate limitation. Additionally, servicemembers currently on
active duty that received loans prior to entering active duty will not be able to claim
the 6% cap.
Title III: Rent, Installment Contracts, Mortgages,
Liens, Assignments, Leases
Sections 301 through 308 provide protections from eviction and loss of other
benefits or rights due to the failure of a servicemember to meet payments on rent,
loans, mortgages, or insurance policies. Unlike the other parts of the SCRA, the
rights described in these sections can be asserted by a servicemember’s dependents
in their own right.
36 The 6% interest rate cap remains in effect during the period of military service and one
year thereafter, in the case of an obligation or liability consisting of a mortgage, trust deed,
or other security in the nature of a mortgage; or during the period of military service, in the
case of any other obligation or liability (P.L. 110-289, 122 Stat. 2654 (July 30, 2008)).
37 Fair Credit Reporting Act, 84 Stat. 1128, codified at 15 U.S.C. §§1681 et seq.
38 See The Judge Advocate General’s Legal Center & School, U.S. Army, JA 260,
Servicemembers Civil Relief Act [§ 3-8].
39 20 U.S.C. § 1078(d).
40 P.L. 110-315, 122 Stat. 3078 (August 14, 2008).
Evictions and distress. Sec. 301 (50 U.S.C. app. § 531). Under this
section, unless a court orders otherwise, a landlord or person with “paramount title”
may not evict a servicemember during a period of military service or his or her
dependents from a rented home (such as an apartment, a trailer, or a house) if the rent
is $2,400 per month or less. The rent ceiling is adjusted annually for inflation and
in 2008 the amount is $2831.13.41 In a case where the landlord seeks a court order
for the eviction of a servicemember or his or her dependents, the court is obligated
to stay the proceedings for up to three months if the servicemember requests it. In
the alternative, the court may adjust the obligation under the lease to preserve the
interests of all the parties. Section 202 (stay of proceedings when servicemember has
notice) of the act is not applicable to this section.
The section provides that anyone who knowingly takes part in an eviction in
violation of this section can be punished by imprisonment for up to one year, a fine
as provided in Title 18, U.S. Code, or both. Persons claiming relief under this
section may collect consequential and punitive damages in cases involving wrongful
Additionally, courts are allowed to grant landlords, or other persons with
“paramount title,” equitable relief in cases where a stay is granted. If the court orders
payment, Subsection (d) authorizes the Secretary concerned to make an allotment
from the servicemember’s military pay to satisfy the terms of the order.
Protection under installment contracts for purchase or lease. Sec.
302 (50 U.S.C. app. § 532). Except by court order, no one who has collected a
deposit as partial payment for property, where the remainder of the price is to be paid
in installments, can repossess the property or cancel the sale, lease, or bailment
because of the failure to meet the terms of the contract, if the buyer enters active duty
military service after paying the deposit and subsequently breaches the terms of the
contract. A violation of this section is punishable by imprisonment for up to one
year, a fine as provided in Title 18, U.S. Code, or both. A court may order the
cancellation of the installment sale, mandating the return of the property to the seller
as well as the return of paid installments to the buyer, or the court may stay the
proceedings. This section does not permit a servicemember unilaterally to terminate
the contract, although the servicemember may be able to bring an action under
Section 701 for relief.
Mortgages and trust deeds. Sec. 303 (50 U.S.C. app. § 533). This section
covers servicemembers who, prior to a period of active military service, entered into
a property transaction subject to a mortgage, a trust deed, or other security loan. If
the servicemember is unable to make payments on the loan due to military service,
the provision prevents the vendor from exercising any right or option under the
contract to rescind or terminate, to resume possession of the property for nonpayment
of any installment due, or to breach the terms, except by action in a court of
41 Publication of Housing Price Inflation Adjustment Under 50 U.S.C. App. Section 531, 73
Fed. Reg. 6,485 (February 4, 2008) (The Secretary of Defense is required to publish
annually in the Federal Register the rent ceiling amount adjusted for inflation.).
competent jurisdiction, until nine months after the term of active duty terminates.42
A sale, foreclosure, or seizure of property during a servicemember’s period of
military service is prohibited unless under a court order issued prior to foreclosure
on the property, or if made pursuant to an agreement under Section 107 of the act.
If the servicemember breaches the terms of a mortgage, trust deed, or other loan,
the court may stay any proceedings brought by the lender to enforce the terms of the
agreement. The court may also order any other disposition of the property that it
decides is fair to both the borrower and the lender. Property repossessed or other
action taken without benefit of a court order is punishable by imprisonment up to one
year, a fine as provided by Title 18, U.S. Code, or both, and may subject the creditor
to a suit for wrongful conversion. In addition, where a covered person can show
oppression, fraud, or malice on the part of the creditor, consequential and punitive
damages, among other remedies, may be awarded.
Settlement of stayed cases relating to personal property. Sec. 304
(50 U.S.C. app. § 534). If a court stays an action for foreclosure on property,
repossession, or the cancellation of a sales contract against a servicemember, the
court can appoint three disinterested persons to appraise the property and, on the
basis of the appraisal, order the amount of the servicemember’s equity to be paid
back to the person on active duty in military service as a condition for allowing the
foreclosure, repossession, or cancellation.
Termination of residential or motor vehicle leases. Sec. 305 (50
U.S.C. app. § 535). Military persons who live in rental property are allowed to
terminate leases entered into prior to a period of active service. It applies to: (1)
property leased for a dwelling or for professional, business, or farm use, or other
similar purpose, where the person leasing the property later enters active duty in
military service, or where the servicemember executes the lease while in military
service and thereafter receives military orders for a permanent change of duty station
(PCS) or to deploy with a military unit for a period of at least 90 days; and (2) motor
vehicle leases for personal or business transportation where the person later enters
active military service of not less than 180 days or where the servicemember executes
the lease while in military service and thereafter receives PCS orders outside of the
continental United States or to deploy with a military unit for at least 180 days.
Servicemembers who rent premises are advised to ensure the rental agreement
contains a “military” clause to allow for early termination of a lease in case of
military orders to deploy.43 In 2004 the right to terminate leases was expanded to
include joint leases.44 The added language specifies that any lease terminated
pursuant to this section also terminates any obligation a dependent of the lessee may
have under the lease.
42 P.L. 110-289, 122 Stat. 2654 (July 30, 2008). The nine-month provision on the
prohibition of foreclosure against a servicemember is set to expire on December 31, 2010;
at that point the period prohibiting foreclosure will revert to 90 days.
43 See The Judge Advocate General’s Legal Center & School, U.S. Army, JA 260,
Servicemembers Civil Relief Act [§ 4-7].
44 P.L. 108-454, 118 Stat. 3598 (December 10, 2004).
The servicemember may terminate a property lease by delivering by hand,
private business carrier, or mailing return receipt requested, a written notice and a
copy of the his or her’s military orders to the lessor or its agent. With regard to a
motor vehicle lease, the servicemember must return the motor vehicle to the lessor
or its agent no later than 15 days after the date of delivery of the written notice. As
for a residential lease, if the lease called for monthly rent, then cancellation takes
effect thirty days after the next due date for rent following the day the written notice
is sent. For all other property leases, the cancellation is considered effective at the
end of the month following the month in which the written notice is sent. Any
unpaid rent prior to the effective cancellation must be paid to the landlord on a
prorated basis. The servicemember is entitled to a refund of any prepaid rent for time
after the lease is canceled within 30 days of the termination of the lease. A court can
make adjustments if the landlord petitions the court for an “equitable offset” prior to
the date the lease is effectively canceled.45 For motor vehicle leases, the cancellation
is considered effective on the day on which the vehicle is returned to the lessor. The
lessor cannot impose early termination fees, but the servicemember is still
responsible for any taxes, summonses, title and registration fees, and any other
obligation and liability under the lease, including reasonable fees for excessive wear,
use, and mileage.
Anybody who knowingly seizes personal effects, a security deposit, or any other
property belonging to a person who has lawfully canceled a lease pursuant to this
section is subject to punishment. Anyone who seizes or otherwise interferes with the
removal of property in order to satisfy a claim for rent due for any time after the date
of the effective cancellation of the lease may be punished by imprisonment for up to
one year, a fine as provided in Title 18, U.S. Code, or both.
Protection of life insurance policy. Sec. 306 (50 U.S.C. app. § 536). If
a person entering military service has used a life insurance policy as collateral to
secure a debt, they are protected from foreclosure on the policy to satisfy the debt
unless the assignee first obtains a court order, except where the assignee is the
insurance company itself (in which case the debt amounts to a policy loan). A court
may refuse to grant the order if it determines that the servicemember’s ability to
repay is materially affected by military service. This rule applies during the entire
time the insured is on active duty plus one year. The rule does not apply in three
cases: (1) if the insured gives his or her written permission to let a creditor make a
claim against the policy in order to satisfy the debt involved; (2) if any premiums
required under the life insurance policy are due and unpaid (excluding premiums
guaranteed under Title IV of this act); or (3) if the person whose life is insured has
died. Anyone who knowingly takes or attempts action contrary to this section shall
be punished by imprisonment for up to a year, or a fine as provided in title 18, U.S.
Code, or both.
45 An “equitable offset” may allow the landlord to retain part or all of the amount of rent
remaining on the lease as well as the security deposit, to compensate for unreasonable
expenses incurred as the result of early lease termination. Omega Industries, Inc., v.
Raffaele, 894 F.Supp. 1425 (D. Nev. 1995).
Enforcement of storage liens. Sec. 307 (50 U.S.C. app. § 537). A
servicemember with property or effects subject to a lien, including liens for storage,
repair or cleaning of property, is protected from foreclosure or enforcement of the
lien during the period of military service plus three months unless a court finds that
the servicemember’s ability to meet the obligation is not materially affected by
military service. A court can also stay the proceedings in these types of enforcement
actions or order some other disposition of the case it deems equitable to the parties.
This section does not affect the scope of Section 303 (mortgages and trust deeds).
Anyone who knowingly takes any action contrary to the provisions is punishable by
imprisonment up to one year, a fine as provided by title 18, U.S. Code, or both.
Extension of protections to dependents. Sec. 308 (50 U.S.C. app. §
538). The benefits of the rules provided under Title III (50 U.S.C. app. §§ 531 to
537) of the SCRA are extended to dependents of active duty personnel in their own
right. A dependent must petition a court for permission to take advantage of those
rules, and the court is not required to grant permission if it determines that the ability
of the applicant dependent to comply with the terms of the obligation, contract, lease,
or bailment has not been materially impaired by the military service of the person
upon whom the applicant is dependent.
Title IV: Life Insurance
Title IV provides relief from insurance premiums and guarantees
servicemembers continued coverage under certain commercial life insurance policies.
Definitions. Sec. 401 (50 U.S.C. app. § 541). For the purposes of Title IV of
the SCRA, the following definitions apply:
‘Policy’. ‘Policy’ includes any individual contract for whole, endowment,
universal, or term life insurance (other than group term life insurance), or benefit
similar to life insurance that comes from membership in any fraternal or beneficial
association and has to satisfy all of the following conditions:
(1) the policy does not include a provision limiting the amount of insurance
coverage based on the insured’s military service;
(2) the policy does not require the insured to pay higher premiums if he or she
is in military service;
(3) the policy does not include a provision that limits or restricts coverage if the
insured person engages in any activity required by military service; and
(4) the policy has to be “in force” (premiums have to be paid on time before any
benefit guaranteed by these sections of the law can be claimed) for at least 180
days before the insured enters military service.
‘Premium’. ‘Premium’ is the amount specified in the policy to be paid to keep
the policy in force.
‘Insured’. ‘Insured’ is defined as a servicemember who owns a life insurance
‘Insurer’. ‘Insurer’ includes any firm, corporation, partnership, association, or
business that can, by law, provide insurance and issue contracts or policies.
Insurance rights and protections. Sec. 402 (50 U.S.C. app. § 542).
Either the person insured, an insured’s legal representative, or, when the insured
person is outside the United States, a beneficiary of the insurance policy must apply
for protection of a covered policy under the act. The written application must be
submitted to the insurer with a copy sent to the Secretary of Veterans Affairs. The
total amount of policies covered are limited to the greater of $250,000, or an amount
equal to the maximum limit of the Servicemember’s Group Life Insurance(SGLI).
In 2005, the maximum limit of SGLI was increased to $400,000 thereby raising the
maximum amount of covered policies.46
Application for insurance protection. Sec. 403 (50 U.S.C. app. § 543).
In order to invoke protection for the policies covered under this part of the SCRA,
the servicemember, his or her legal representative, or beneficiary must submit an
application in writing identifying the policy and insurer, with an acknowledgment
that the insured’s rights under the policy are subject to and modified by the
provisions of Title IV of this act. The Secretary of Veterans Affairs may require the
parties to provide additional information as necessary. The insurer then reports the
action to the Department of Veterans Affairs as required by regulation (found in 38
C.F.R. Part 7).47 By making an application for the protection guaranteed by these
sections of the law, the insurer and insured are deemed to have accepted any
necessary modifications to the terms of the life insurance policy.
Policies entitled to protection and lapse of protections. Sec. 404 (50
U.S.C. app. § 544). The Secretary of Veterans Affairs determines whether a policy
is entitled to the protection guaranteed by these sections, and is responsible for
notifying the insurer and the insured as to his determination. Once the policy is
deemed qualified for protection, it may not lapse or otherwise be terminated or be
forfeited for the nonpayment of a premium, or interest or indebtedness on a premium.
This protection applies during the time the insured person is in military service and
for two years after he or she leaves military service.
46 P.L. 109-80, 119 Stat. 2045 (September 30, 2005) (increased the maximum SGLI benefit
47 Title 38, Part 7, of the Code of Federal Regulations, revised as of July 1, 2007, addresses
Soldiers’ and Sailors’ Civil Relief not Servicemembers Civil Relief and cites 50 U.S.C. app
511, 540-547 as authority. SCRA as enacted by P.L. 109-183 does not contain a Section
540 and includes two additional Sections 548 and 549 that are not referenced in the
regulations. The authority for the Secretary of Veterans Affairs to promulgate regulations
to carry out the provisions of the Title are now contained in 50 U.S.C. app § 548, and
judicial review of decisions by the Secretary, previously not included in the SSCRA, is
found in 50 U.S.C. app § 549.
Policy restrictions. Sec. 405 (50 U.S.C. app. § 545). The approval of the
Secretary of Veterans Affairs is necessary for a policy holder to make certain
withdrawals and other payments or credits under a policy protected by this part of the
SCRA. If such approval is not obtained, rather than paying dividends to the insured
or reinvesting them to purchase additional coverage, the insurer must add dividends
to the value of the policy to be treated as a credit. The insured is not permitted to take
out loans against the policy or cash it in while it is protected without the approval of
the Secretary of Veterans Affairs. However, the insured retains the right to modify
the designation of beneficiaries.
Deduction of unpaid premiums. Sec. 406 (50 U.S.C. app. § 546). If a
covered policy matures due to the death of the insured, the insurance company may
reduce its settlement with the beneficiaries by the amount of any unpaid premiums
(plus interest). If the rate of interest is not specified in the policy, it will be the same
rate applied to policy loans in other policies issued at the time when the insured’s
policy was issued. Deductions must be reported to the Secretary of Veterans Affairs.
Premiums and interest guaranteed. Sec. 407 (50 U.S.C. app. § 547). In
the event the insured fails to pay all of the premiums owed on a policy at the time the
guarantee period expires and the cash surrender value of the policy is less than the
amount due, the United States will pay the unpaid premiums and may then attempt
to collect the amount from the insured. (Any funds collected from the insured are
added to appropriations for the payment of guaranteed premiums under this part of
the SCRA). If the unpaid premiums do not exceed the policy’s cash surrender value,
the insurer will treat them as a policy loan. Moreover, any money paid by the
government to an insurance provider under this section is a debt owed by the insured
to the government and may not be discharged by bankruptcy.
Regulations. Sec. 408 (50 U.S.C. app. § 548). The Secretary of Veterans
Affairs will promulgate regulations to carry out the provisions of the article.
Review of findings of fact and conclusions of law. Sec. 409 (50 U.S.C.
app § 549). The findings of fact and conclusions made by the Secretary in
administering these sections are subject to review by the Board of Veterans’ Appeals
and the U.S. Court of Appeals for Veterans’ Claims. Judicial review is permitted
only to the extent provided by chapter 72 of Title 38, U.S. Code.
Title V: Taxes and Public Lands
The fifth broad category of provisions of the SCRA provides certain rights
regarding public lands and relieves servicemembers from having to pay certain taxes
to multiple jurisdictions. It also prevents the attachment of certain personal or real
property in order to satisfy tax liens.
Taxes respecting personal property, money, credits, and real
property. Sec. 501 (50 U.S.C. app. § 561). Personal property (including motor
vehicles) belonging to a person in military service, as well as real property used by
the servicemember as a home, a business, or for agriculture, as long as the property
continues to be occupied by the servicemember’s family or employees, cannot be
sold to collect unpaid taxes or assessments, except income taxes, without a court
order. A court may stay an action to force the sale of property belonging to a person
in military service for the collection of unpaid taxes if it finds that the debtor’s ability
to pay the taxes is materially affected by his or her military service. In the event a
servicemember’s property is sold to satisfy tax liabilities, the servicemember has the
right to redeem the property up to six months after the person leaves military service.
This section may not be construed to shorten any period of redemption provided by
state law. If a servicemember fails to pay a tax or assessment on property covered
by this section when due, the amount unpaid and due shall accrue interest at 6%, but
no other penalties or interest may be assessed. Additionally, joint ownership of all
forms of personal and real property by a servicemember and his or her dependents
are covered by this section.
Rights in public lands. Sec. 502 (50 U.S.C. app. § 562). Servicemembers
cannot be deemed to have forfeited any right (including mining and mineral leasing
rights) they had to use public lands of the United States prior to entering military
service based on absence from the land or failure to perform required maintenance
or other improvements. Holders of permits and licenses who subsequently enter
military service may suspend the licenses for the duration of military service plus six
months, allowing the servicemember to obtain a reduction or cancellation of fees for
the duration of that time.
Desert-land entries. Sec. 503 (50 U.S.C. app. § 563). Servicemembers with
claims to desert lands prior to entering military service may not have those claims
contested or cancelled (1) for failing to expend required amounts in improvements
annually, (2) failing to effect the reclamation of the claim during the period of
service, or (3) during hospitalization or rehabilitation due to an injury or disability
incurred in the line of duty. The protection is in force during and for six months after
he or she leaves military service or is released from hospitalization. To qualify for
this protection, notice must be given to the appropriate land office within six months
after entering military service.
Mining claims. Sec. 504 (50 U.S.C. app. § 564). Certain requirements for
maintaining a mining claim are suspended during the holder’s period of active
military service and for six months after or is released from hospitalization because
of wounds or disability suffered while in the line of duty. During this period, the
mining claim cannot be forfeited due to nonperformance of the requirements of the
lease. To qualify for this protection, the servicemember must notify the appropriate
claims office of commencement of military service within 60 days after the end of
the assessment year in which the service began.
Mineral permits and leases. Sec. 505 (50 U.S.C. app. § 565). Any person
who holds a permit or a lease under the federal mineral leasing laws who enters
military service is allowed to suspend all operations during military service (plus six
months), in which case the period of service is not counted as part of the term of the
person’s permit or license but the holder is not required to pay rentals or royalties
during that time. However, to qualify for these privileges, the person has to notify
the Bureau of Land Management that he or she has entered military service within
six months after entering.
Perfection or defense of rights. Sec. 506 (50 U.S.C. app. § 566). Nothing
in Title V of the SCRA prevents a person in military service from taking any action
authorized by law or regulations of the Department of the Interior to assert, perfect,
or protect the rights covered in those sections. A servicemember may submit any
evidence required to assert this right in the form of affidavits or notarized documents.
Affidavits provided pursuant to this section are subject to 18 U.S.C. § 1001.
Distribution of information concerning benefits of title. Sec. 507 (50
U.S.C. app. § 567). The Secretary concerned is responsible for providing military
authorities with information about the benefits of this Title (except those pertaining
to taxation) for distribution among servicemembers and shall provide application
forms to be used by applicants requesting relief.
Land rights of servicemembers. Sec. 508 (50 U.S.C. app. § 568).
Protection of land rights under this Title are extended to servicemembers under the
age of 21. Any residency requirements related to the establishment of a residence
within a limited time will be suspended for six months after release from military
Regulations. Sec. 509 (50 U.S.C. app. § 569). The Secretary of the Interior
has the authority to issue regulations necessary to carry out Title V of the act, other
than the sections that deal with taxes (Sections 501, 510, and 511).
Income taxes. Sec. 510 (50 U.S.C. app. § 570). The collection of income
taxes (excluding Social Security (FICA) taxes) owed by a servicemember, either
before or after entering service, may be deferred during the period of service, and for
up to six months after, if his or her ability to pay the taxes is materially affected by
military service. No interest or other penalty may be imposed on a debt deferred
under this section. The statute of limitations for paying the debt is tolled for the
length of the person’s period of service plus nine months.
Residence for tax purposes. Sec. 511 (50 U.S.C. app. § 571). In order to
prevent multiple state taxation on the property and income of military personnel
serving within various tax jurisdictions by reason of military service, this section
provides that servicemembers neither lose nor acquire a state of domicile or residence
for taxation purposes when they serve at a duty station outside their home state in
compliance with military orders. A servicemember who conducts other business
while in military service may be taxed by the appropriate jurisdiction for resulting
income. This section does not protect the income of a spouse or other military
dependant from taxation. However, a tax jurisdiction cannot include the military
compensation earned by nonresident servicemembers to compute the tax liability
imposed on the non-military income earned by the servicemember or spouse.
Personal property of a servicemember will not be subject to taxation by a jurisdiction
other than his or her domicile or residence while serving at a duty station outside of
his or her home state. However, relief from personal property taxes does not depend
on whether the property is taxed by the state of domicile. Property used for business
is not exempt from taxation. An Indian servicemember whose legal residence or
domicile is a Federal Indian reservation will only pay taxes under the laws of the
Federal Indian reservation and not to the state where the reservation is located.
“Tax jurisdiction” is defined to include “a State or a political subdivision of a
State,” which would include the District of Columbia and any commonwealth,
territory or possession of the United States (Sec. 101(6)). “Taxation” includes
licenses, fees, or excises imposed on an automobile that is also subject to licensing,
fees or excise in the servicemember’s state of residence. “Personal property”
includes intangible and tangible property including motor vehicles.
Title VI: Administrative Remedies
Title VI provides courts the authority to deny remedies that would abuse the
purpose of the SCRA, indicates how a servicemember’s military and financial status
can be established in court, and covers other procedural requirements.
Inappropriate use of act. Sec. 601 (50 U.S.C. app. § 581). A court may
deny a servicemember the protections of the act with respect to a transfer it finds was
made with the intent to exploit the provisions of the act, in order to delay
enforcement of the contract, to obtain reduced interest rates, or to avoid obligations
with respect to property that was the subject of the transaction.
Certificates of service; persons reported missing. Sec. 602 (50 U.S.C.
app. § 582). A certificate signed by the Secretary concerned serves as prima facie
evidence in an action under the SCRA that the individual is in the military service,
date of induction or discharge, person’s residence at time of induction, rank and rate
of pay, and other facts relevant to asserting rights under the SCRA. A
servicemember who is missing in action is presumed to continue in military service
until he or she is accounted for or his or her death has been reported to the
Department of Defense or determined by a court or board with the authority to make
Interlocutory orders. Sec. 603 (50 U.S.C. app. § 583). Courts may revoke,
modify, or extend any interlocutory orders they issued pursuant to the SCRA.
Title VII: Further Relief
Title VII of the SCRA provides a means for servicemembers to petition for
relief without having to wait until a creditor brings an enforcement action against
them. It also treats powers of attorney and provides relief from liability insurance
premiums for servicemembers who need to maintain such policies for their civilian
Anticipatory relief. Sec. 701 (50 U.S.C. app. § 591). A servicemember may
initiate an action for relief prior to defaulting on any pre-service obligation or
liability, including tax obligations, rather than waiting for the creditor to commence
proceedings. Dependents do not have independent protection under this section as
they do for the provisions of Title III.
Courts may grant the following relief:
(1)if the obligation involves payments of installments for the purchase of real
estate (like a mortgage), the court can stay enforcement of the obligation
by adding a period of time, no greater than the period of military service,
to the remaining life of the contract, subject to the payment of the balance
of principal and accumulated interest that remains unpaid at the termination
of the applicant’s military service, in equal installments over the duration
of the extended life of the contract; and
(2)for any other type of obligation, liability, tax, or assessment, the court can
stay enforcement, for a period of time equal to the petitioner’s period of
military service, subject to payment of the balance of principal due plus
accumulated interest in equal installments over the duration of the stay.
If a stay has been granted under this section, no fine or penalty can be imposed
for its duration as long as the servicemember complies with the terms and conditions
of the stay. This provision allows servicemembers who are not yet in default on an
obligation, but whose ability to make payments is materially affected by military
service, to petition the court in effect to rewrite the contract by extending its life,
allowing the servicemember to pay down the amount in arrears with equal
installments over a longer of period of time. The servicemember must resume
making regular payments on the debt after leaving active duty, in addition to the
payments to make up for the smaller payments he or she made while on active duty.
Power of attorney. Sec. 702 (50 U.S.C. app. § 592). A valid power of
attorney for a person who is declared to be missing in action is automatically
extended. Unless the document explicitly states that it is to expire, even in the event
the person who executed it becomes missing in action, the document continues in
force for the entire period the person remains in a missing status. It is limited to
documents that designate the servicemember’s spouse, parent, or named relative as
the servicemember’s attorney in fact.
Professional liability protection. Sec. 703 (50 U.S.C. app. § 593). Certain
persons who, prior being called to active duty, were furnishing health-care or legal
services or any other services which the Secretary of Defense determines to be
professional services and who had in effect a professional liability (i.e., malpractice)
insurance policy, may suspend payment of premiums on their liability insurance
while they serve on active duty without losing any coverage. The section covers
insurance policies that, according to their terms, would not continue to cover claims
arising prior to a lapse in coverage unless the insured continues to pay premiums.
Definitions. “Profession” is defined in Subsection (i) to include “occupation.”
Similarly, the expression “professional” includes the term “occupational.”
Subsection (i) also defines “active duty,” adopting the definition used in Section 101
of Title 10, U.S. Code. However, the provision is further limited to persons called
to active duty (other than for training) under 10 U.S.C. §§ 688 (retired members of
regular armed forces, members of the Retired Reserves, and members of the Fleet
Reserve or Fleet Marine Corps Reserve); 12301(a) (activation of Reserves during war
or national emergency declared by Congress); 12301(g) (member of Reserve
component in captive status); 12302 (Ready Reserve); 12304 (Selected Reserve and
certain Individual Ready Reserve members called to active duty other than during
war or national emergency); 12306 (Standby Reserve); 12307 (Retired Reserve); and,
if any of the preceding sections are invoked, Section 12301(d) (volunteer member of
a Reserve component).
Suspension of coverage. Professional liability insurance policies covered
by this section are suspended from the time the insurer receives a request for
protection until the insured requests in writing to have the policy reinstated. In the
case of a joint insurance policy, no suspension of coverage is required for the
policyholders who are not called to active duty. For example, if several physicians
jointly purchase a group policy of malpractice insurance, and only one of them is
called to active duty, the coverage of those not called to active duty need not be
suspended by the insurer.
Premiums. The insurer may not charge premiums for coverage that is
suspended. The insurer must either refund any amount already paid for coverage that
is suspended or, if the insured professional person chooses, apply the amount toward
payment of any premium that comes due after coverage is reinstated.
Liability during suspension. The insurer is not obligated to pay any claim
that is based on a professional’s actions (or inaction) during a period when a policy
is suspended. In the case of claims involving obligations imposed by state law on a
professional person to assure that his or her patients or clients will receive
professional assistance in his or her absence to serve on active duty, the section
clarifies that the failure of the professional person to satisfy such an obligation will
generally be considered to be a breach that occurred before the professional person
began active duty. In such a situation, the insurer would be liable for the claim. In
the event a claim arises while the patient is receiving alternate care as arranged by the
servicemember for patients during his or her absence, the insurer would not be liable
for the claim.
Actions against policy holder during suspension of coverage. In the
event a malpractice suit (or administrative action) is filed during the period when the
insurance is suspended, the litigation will be stayed until the end of the suspension
period. The stay only applies where the malpractice is alleged to have occurred
before the suspension began, and would thus be covered by the policy. Litigation
stayed under this rule is deemed to be filed on the date the suspended insurance is
reinstated. The period of any stay granted under this provision is not counted when
computing whether or not the relevant statute of limitations has run.
In the event that a professional person whose malpractice insurance coverage
has been suspended should die during the period of the suspension, any stay of
litigation or administrative action against the person under this section is lifted. In
addition, the insurer providing the coverage that was suspended is to be liable under
the policy just as if the deceased person had died while covered by the policy but
before the claim was filed.
Reinstatement of coverage. The insurer is required to reinstate the
insurance coverage on the date the servicemember transmits a written request for
reinstatement, which must occur within 30 days after the covered servicemember is
released from active duty. The insurer must notify the policy-holder of the due date
for payment of any premium required for reinstatement of the policy, and that the
premium must be paid within 30 days after the notice is received by the professional
person. The section also limits the premium that the insurer can charge for reinstated
coverage to the rate that would have applied if the servicemember had not been
deployed. The insurer is not allowed to recoup missing premiums by charging higher
rates for reinstated coverage, but it may charge higher rates for reinstated coverage
if it raised the rates for all policyholders with similar coverage, if the servicemember
would have had to pay a higher premium even if he or she had not suspended
Health insurance reinstatement. Sec. 704 (50 U.S.C. app. § 594). This
section grants servicemembers who were called to military service as described in §
703(a)(1) the right, upon termination or release from military service, to
reinstatement of any health insurance policy that was in effect on the day before the
servicemember entered military service, and that terminated at any time during his
or her service. No new exclusions from coverage or waiting periods for
reinstatement of coverage may be imposed with respect to conditions arising prior
to or during the servicemember’s period of military service, if such an exclusion or
waiting period would not have applied during regular coverage and the condition has
not been determined to be a disability incurred in the line of duty under 38 U.S.C. §
105. The section does not apply to employer-sponsored health insurance plans
covered by the provisions of the Uniformed Services Employment and48
Reemployment Rights Act (USERRA). Insurance plans covered by USERRA are
subject to similar protections under 38 U.S.C. § 4317. Servicemembers must apply
for reinstatement within 120 days of termination or release from active duty.
In 2006, language was added limiting premium increases on a health insurance
policy covered by the section.49 The amount of the premium may not be increased
on a policy being reinstated for the balance of the period for which the coverage
would have continued had it not be terminated, above an amount that would have
been charged before termination. In the event that the premiums for similarly
covered individuals increased during the terminated period, the increased premium
may be assessed to the servicemember upon reinstatement of the policy.
Guarantee of residency for military personnel. Sec. 705 (50 U.S.C.
app. § 595). Military personnel are not deemed to have changed their state residence
or domicile for the purpose of voting for any federal, state, or local office, solely
because of their absence from the respective state in compliance with military or
Business or trade obligations. Sec. 706 (50 U.S.C. app. § 596). The
assets of a servicemember are protected from attachments to satisfy business debts
for which the servicemember is personally liable, as long as the assets sought to be
attached are not held in connection with the business. The obligor would have the
right to apply to the court for a modification of the servicemember’s relief where
warranted by equitable considerations.
The SCRA in the 110th Congress
The economic and financial burdens servicemembers experience continue to
draw the attention of Congress. In the 110th Congress, more than 20 bills have been
48 P.L. 103-353, 108 Stat. 3161 (1994), codified at 38 U.S.C. §§ 4301 et seq.
49 P.L. 109-233, 120 Stat. 397 (June 15, 2006).
introduced proposing amendments to the SCRA, covering such topics as housing,
credit rating, service contracts, educational benefits, jurisdictional concerns, and child
custody. Housing, including mortgage and foreclosure protections, and child custody
are the two most common themes of the proposed amendments.
Housing. In response to subprime mortgage concerns and the increasing
number of foreclosures, numerous proposals aimed at protecting servicemembers
have been introduced in Congress. Proposals range from rent and mortgage relief to
extending protections against foreclosure.
A proposed addition to Title III would create a new section addressing rent and
mortgage relief for members of the Reserve components.50 Covered individuals
would not be required to pay rent under a lease if the member is assigned duty at a
location “sufficiently distant” from the property and unable to reside at that property.
The bill does not define the term “sufficiently distant,” and it is unclear how a
determination would be made as to what is in fact sufficiently distant to qualify for
the benefit or how a disputed claim would be resolved. Additionally, the proposed
section would not require covered individuals to make any payment of principal or
interest on the mortgage during the period of military service. All excused payments
would be appended to the end of the term of the mortgage in the same amount as
The overall scope of the mortgage provisions contained in the SCRA are limited
to mortgages that originate before the servicemember entered military service.
Expansion of mortgage benefits appear unlikely to benefit career military members.
In contrast, a proposed modification to the maximum interest rate protection51
contained in Section 207 would apply to all servicemembers. The language in the
bill would effectively remove the requirement that the debts be incurred prior to the
period of military service and specifically identifies mortgages as being covered by
the maximum interest rate of 6%. While Section 207 is titled, “Maximum rate of
interest on debts incurred before military service,” the bill removes the language
requiring the debt to have been incurred prior to entering military service. The
amendment does not change the title of Section 207, however.
Child custody. Early in the second session of the 110th Congress, P.L. 110-
181 was enacted clarifying that child custody proceedings are covered under the
SCRA provisions against default judgments and the right to request a stay of
proceedings.52 Multiple bills have been introduced that would expand the language
related to child custody proceedings, specifically creating a new section addressing
child custody within Title II of the SCRA.53
50 H.R. 1511, 110th Cong., 1st Sess. (2007).
51 S. 2764, 110th Cong., 2nd Sess. (2008).
52 See 50 U.S.C. app §§ 521, 522.
53 See, e.g., H.R. 5658, 110th Cong., 2nd Sess. (2008); H.R. 6048, 110th Cong., 2nd Sess.
(2008); S. 1658, 110th Cong., 2nd Sess. (2008).
Under proposed amendments, servicemembers deployed in support of a
contingency operation are protected from changes in child custody orders. Courts are
prohibited from modifying or amending any previous judgment or order, or issuing
a new order that changes a custody arrangement existing at the start of the
deployment. However, courts may enter a temporary custody order if it is in the best
interest of the child. If a temporary order is entered, upon completion of the
deployment the custody order that was in effect immediately preceding the date of
deployment is reinstated.54 If a motion for change of custody is filed upon
completion of a deployment, the absence of the member by reason of the previous
deployment may not be considered by the court in determining the best interest of the
While the proposed amendments would create a new section under Title II, it
appears that it could conflict with the previous amendment clarifying that Sections
521 and 522 apply to child custody proceedings. The protection against default
judgments contained in Section 521 would not conflict with the proposed
amendment, in that a court is unable to enter a permanent change in custody while
a servicemember is deployed in support of a contingency operation. Any temporary
orders entered while the servicemember is deployed would revert to the order that
existed on the date of deployment, and, therefore, would not be considered a default
judgment. However, it is unclear if a servicemember may request a stay under
Section 522 in order to prevent the court from entering a temporary order changing
child custody under the new section.
Jurisdiction and civil enforcement. Section 102 establishes that the act
applies to any judicial or administrative proceeding commenced in any court of the
United States, each of the states, and all territory subject to the jurisdiction of the
United States. An application for relief, when no proceeding has already commenced,
may be made to any court having jurisdiction over the matter. However, a recent
opinion from the United States District Court for the Northern District of Texas
questioned the proper forum as well as the right of an individual to file a cause of
action under the SCRA.
In Batie v. Subway Real Estate Corp.,55 a servicemember alleged that Subway
Corporation violated the SCRA by evicting him from two commercial spaces while
deployed to Afghanistan.56 After obtaining declaratory judgments in the State of
Texas courts, Subway evicted the servicemember from two commercial spaces under
lease. Batie filed suit in the federal district court seeking relief from the declaratory
54 The language of the proposed amendments are similar except that S. 1658 does not
contain language allowing the court to avoid reinstating the previous child custody order if
it isn’t in the best interest of the child.
55 Batie v. Subway Real Estate Corp., 2008 U.S. Dist. LEXIS 11458 (N.D. Tex. February
56 The servicemember claimed Subway violated SCRA procedures, in two different
proceedings before state courts, by failing to: (1) properly serve plaintiff; (2) appoint an
attorney for plaintiff; (3) notify the court of plaintiff’s status as a U.S. serviceman or his
deployment abroad; (4) apprise plaintiff of the eviction notice; and (5) stay proceedings
pending plaintiff’s return from deployment.
judgments Subway obtained in the state courts and for compensatory and punitive
damages for the violations of the SCRA. The U.S. district court, in determining if
it should uphold the state court declaratory judgment stated, “Congress envisioned
that state courts — not federal district courts — would decide claims involving
SCRA’s tenant protections during eviction proceedings.”57 In declining to overturn
the declaratory judgment, the court construed Section 102(b) to mean that jurisdiction
is not exclusive in federal court and that the act does not compel federal adjudication
of all cases implicating the statute’s provisions. Denying the claim for compensatory
and punitive damages, the court cited failure of the servicemember to cite any
provisions in the SCRA authorizing damages.58 Further, the court found that, even
if the servicemember maintains the SCRA as a basis for damages, “there is no
provision in SCRA that authorizes a private cause of action to remedy violations of
the statute.”59 The servicemember’s claims were dismissed by the court.
S. 2787, The National Defense Authorization Act for Fiscal Year 2009,
sponsored by Senator Levin, would establish a new title addressing civil liability and
enforcement of the SCRA, which would partially address some of the issues raised
in Batie.60 The bill would authorize the Attorney General to file a civil action in any
appropriate United States District Court when a reasonable belief exists that an
individual or group is engaged in, or has engaged in, a pattern or practice of conduct
in violation of the SCRA. An action may also be filed if a denial of protections raises
an issue of general public importance. The language establishes that authorized relief
includes monetary damages, including actual and punitive damages, to a
servicemember, dependent, or any other person protected by the act. The court may
also impose a civil penalty to “vindicate the public interest.” Covered individuals are
authorized to intervene in a civil action brought by the Attorney General, and the
court may receive damages and reasonable attorney’s fees and costs associated with
While the proposed language doesn’t explicitly state that a private cause of
action exists under the act, it does provide for intervention when the case has been
filed by the Attorney General. The amendment clearly states that damages, including
actual and punitive damages, are authorized forms of relief in a civil action filed by
the Attorney General. It is unclear if courts would construe this to mean that
damages are available for all violations of the SCRA, not only those under Title III,
through a private cause of action.
57 Batie at 15.
58 Sections addressing rent, installment, contracts, mortgages, liens, assignments, and leases
under Title III do contain language discussing consequential and punitive damages as an
appropriate form of a remedy, though none of these sections would apply to a commercial
lease or eviction from commercial space.
59 Contra Linscott v. Vector Aero., 2006 U.S. Dist. LEXIS 6287 (D. Or. January 31, 2006)
(finding an inferred private cause of action in § 537 of the SCRA); Cathey v. First Republic
Bank, 2001 U.S. Dist. LEXIS 13195 (W.D. La. August 13, 2001) (holding that provisions
of SSCRA provided a private cause of action); Moll v. Ford Consumer Fin. Co., 1998 U.S.
Dist. LEXIS 3638 (N.D. Ill. March 16, 1998) (holding § 526 of SSCRA (6% interest cap)
authorized a private cause of action).
60 S. 2787, 110th Cong., 2nd Sess. (2008).