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Federal Law Assists Troops' Dealings With Creditors

By Gerry J. Gilmore
American Forces Press Service

WASHINGTON, March 29, 2005 – Federal law prohibits mortgage lenders from immediately foreclosing on homes owned by servicemembers deployed overseas on military duty, a senior legal officer noted here.

All servicemembers, including those deployed, are protected under the Servicemembers Civil Relief Act, signed by President Bush on Dec. 19, 2003, said Army Col. Christopher Garcia, director of legal policy at the Office of the Undersecretary of Defense for Personnel and Readiness.

"The SCRA includes a provision that protects against default judgment. In any civil action, such as a lawsuit or a foreclosure, in which the defendant does not make an appearance, the court must require the plaintiff bringing the suit to file an affidavit saying whether or not the other party in the lawsuit is a servicemember," Garcia explained.

And, if the party being sued for foreclosure or some other debt action is a servicemember, Garcia continued, "then the SCRA requires the judge to do certain things to protect the servicemember's rights" under the law.

For example, he said, the courts "are required to stay the court proceedings for a minimum of 90 days until the servicemember can be present to assert a defense." Most often, such court cases are delayed until the servicemember has completed his or her overseas deployment, Garcia pointed out.

Garcia said he had no specific information regarding recent news reports saying some deployed servicemembers have had their homes foreclosed on or had other assets seized in contradiction to the law.

Business-community compliance with the SCRA "generally has been very good," Garcia noted. Yet, he acknowledged, there've been "isolated cases of noncompliance." This usually occurs, Garcia said, "when a lender, or landlord, or other person dealing with a servicemember is unaware of the law."

After lenders and other creditors become aware of the law, they usually comply with it, Garcia said.

All active, Reserve and Guard troops on active duty, Garcia said, can contact their local military legal assistance officers to assist them in enforcing SCRA-specified rights.

Servicemembers and their family members can personally visit legal assistance offices. A legal assistance attorney can "draft a letter or make a phone call," he pointed out. If the creditor refuses to comply with the SCRA, either the servicemember can sue privately, or the Department of Justice can bring an enforcement action in federal court.

The SCRA is an update to the Soldiers and Sailors Civil Relief Act of 1940, which was established to provide protections to deployed troops who have difficulty meeting their personal financial and legal obligations due to their military service.

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