Oregon State Bar Bulletin — JULY 2009

No-Fault Default Under the Servicemembers Civil Relief Act
By Janine Robben

To avoid granting or taking a default judgment in violation of the Servicemembers Civil Relief Act requires the court and/or the plaintiff in a civil case to ask a series of questions.

The first is whether the defendant has appeared. If the answer is no, and the plaintiff is seeking a default “judgment” (as broadly defined by the act), the plaintiff must file an affidavit stating whether the defendant is in the military.

“How to find out if someone is on active duty has changed hugely,” says Donna Moursund Brann, presiding law judge of Oregon’s Office of Administrative Hearings, who has done training on the act, including that such information may be available from a “really user-friendly website.”1

If the plaintiff can’t determine whether the defendant is in the military, the court, before entering judgment, may require a bond to be posted.

If the defendant is in the military, the court can’t enter a default “judgment” — again, “judgment” as broadly defined by the SCRA — without appointing an attorney for the service member.

As the Professional Liability Fund pointed out in its February 2009 In Brief, this requirement is a mare’s nest because the SCRA does not address where or how the court will locate an attorney to appoint or how that attorney will be paid.

“While the Military Assistance Panel … is established to assist service members in legal matters, it will get involved only at the service member’s request,” attorney Velda Rogers wrote in the PLF article.

In addition to appointing an attorney, the court must stay the proceedings for at least 90 days if it determines that a) there may be a defense that cannot be presented without the service member’s assistance, or b) after due diligence, appointed counsel hasn’t been able to contact the service member or otherwise determine whether a defense exists.

If the defendant is an active-duty service member who has received actual notice of the action and filed a valid application for a stay (including an application filed within 90 days after his military service ends), the court must stay the proceedings for at least 90 days.

If the court denies a request for a stay beyond the mandatory 90-day minimum, it must appoint an attorney to represent the service member.

“Almost certainly, the initial duty of the appointed attorney is to renew the request for a stay of proceedings,” writes North Carolina lawyer Mark Sullivan in his A Judge’s Guide to the Servicemembers Civil Relief Act. “It will be virtually impossible for him or her to prepare and present the case without the assistance of the unavailable SM (service member).”

Of course, as Sullivan notes, in this age of video depositions and the Internet, “Is anyone truly ‘unavailable’ anymore?”

If a default “judgment” is entered against a service member during his service or within 60 days thereafter, the SCRA requires the court to re-open the judgment if a) he files an application within 90 days after his covered service ends; b) his service materially affected his ability to assert a defense at the time and c) he has a meritorious defense to all or part of the action.

Note: A certificate that constitutes prima facie evidence of an opposing party’s military service/non-service can be obtained from https://www.dmdc.osd.mil/scra/owa/home if the opposing party’s Social Security Number is known. If not, a manual search, using the opposing party’s name and date of birth, can be requested from Defense Manpower Data Center, Attn: Military Verification, 1600 Wilson Blvd. Suite 400, Arlington, VA 22209; phone: (703) 696-6762, fax: (703) 6969-4156.

 

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2009 Janine Robben


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