Business Assistant/Business Assistant.iso/legal/gde757_3/lharc3.exe/SOLFULL.STA

Text File | 1993-01-06 | 19.0 KB | 372 lines

/* Here's the full text of the Soldiers' and Sailors' Civil
Relief Act; this act gives persons in the military service
protection from certain mortgage foreclosures and lawsuits.
It is also important for anyone consider suing someone in
the military to be aware of its limitations.*/

 501.  Short title

This Act [50 USC Appx.  501 et seq.] may be cited as the
Soldiers' and Sailors' Civil Relief Act of 1940.

ARTICLE I.  GENERAL PROVISIONS

 510.  Purpose; suspension of enforcement of civil liabilities

In order to provide for, strengthen, and expedite the national
defense under the emergent conditions which are threatening the
peace and security of the United States and to enable the United
States the more successfully to fulfill the requirements of the
national defense, provision is hereby made to suspend enforcement
of civil liabilities, in certain cases, of persons in the
military service of the United States in order to enable such
persons to devote their entire energy to the defense needs of the
Nation, and to this end the following provisions are made for the
temporary suspension of legal proceedings and transactions which
may prejudice the civil rights of persons in such service during
the period herein specified over which this Act [50 USCS Appx.
501 et seq.] remains in force.

 511.  Definitions

(1) The term "person in military service", the terms "persons in
military service", and the term "persons in the military service
of the United States", as used in this Act [50 USC Appx.  501
et seq.], shall include the following persons and no others:  All
members of the Army of the United States, the United States Navy,
the Marine Corps, the Coast Guard, and all officers of the Public
Health Service detailed by proper authority for duty either with
the Army or the Navy.  The term "military service", as used in
this Act [50 USC Appx. 501 et seq.], shall signify Federal
service on active duty with any branch of service heretofore
referred to or mentioned as well as training or education under
the supervision of the United States preliminary to induction
into the military service.  The terms "active service" or "active
duty" shall include the period during which a person in military
service is absent from duty on account of sickness, wounds,
leave, or other lawful cause.

(2) The term "period of military service", as used in this Act
[50 USC Appx.  501 et seq.], shall include the time between the
following dates:  For persons in active service at the date of
the approval of this Act [enacted Oct. 17, 1940] it shall begin
with the date of approval of this Act, for persons entering
active service after the date of this Act, with the date of
entering active service.  It shall terminate with the date of
discharge from active service or death while in active service,
but in no case later than the date when this act [50 USC Appx.
501 et seq.] ceases to be in force.

(3) The term "person", when used in this Act [50 USC Appx.  50
et seq.], with reference to the holder of any right alleged to
exist against a person in military service or against a person
secondarily liable under such right, shall include individuals,
partnerships, corporations, and any other forms of business
association.

(4) The term "court", as used in this Act [50 USC Appx.  501 et
seq.], shall include any court of competent jurisdiction of the
United States or of any State, whether or not a court of record.

 512.  Territorial application; jurisdiction of courts; form of
procedure

(1) The provisions of this Act [50 USC Appx.  501 et seq.]
shall apply to the United States, the several States and
Territories, the District of Columbia, and all territory subject
to the jurisdiction of the United States, and to proceedings
commenced in any court therein, and shall be enforced through the
usual forms of procedure obtaining in such courts or under such
regulations as may be by them prescribed.

(2) When under this Act [50 USC Appx.  501 et seq.] any
application is required to be made to a court in which no
proceeding has already been commenced with respect to the matter,
such application may be made to any court.

 513.  Protection of persons secondarily liable

(1) Whenever pursuant to any of the provisions of this Act [50
USC Appx.  501 et seq.] the enforcement of any obligation or
liability, the prosecution of any suit or proceeding, the entry
or enforcement of any order, writ, judgment, or decree, or the
performance of any other act, may be stayed, postponed, or
suspended, such stay, postponement, or suspension may, in the
discretion of the court, likewise be granted to sureties,
guarantors, endorsers, accommodation makers, and others, whether
primarily or secondarily subject to the obligation or liability,
the performance or enforcement of which is stayed, postponed, or
suspended.

(2) When a judgment or decree is vacated or set aside in whole or
in part, as provided in this Act [50 USC Appx.  501 et seq.],
the same may, in the discretion of the court, likewise to set
aside and vacated as to any surety, guarantor, endorser,
accommodation maker, or other person whether primarily or
secondarily liable upon the contract or liability for the
enforcement of which the judgment or decree was entered.

(3) Whenever, by reason of the military service of a principal
upon a criminal bail bond the sureties upon such bond are
prevented from enforcing the attendance of their principal and
performing their obligation the court shall not enforce the
provisions of such bond during the military service of the
principal thereon and may in accordance with principles of equity
and justice either during or after such service discharge such
sureties and exonerate the bail.

(4) Nothing contained in this Act [50 USC Appx.  501 et. seq.]
shall prevent a waiver in writing of the benefits afforded by
subsections (1) and (2) of this section by any surety, guarantor,
endorser, accommodation maker, or other person whether primarily
or secondarily liable upon the obligation or liability, except
that after the date of enactment of the Soldiers' and Sailors'
Civil Relief Act Amendments of 1942 [enacted Oct. 6, 1942] no
such waiver shall be valid unless it is executed as an instrument
separate from the obligation or liability in respect of which it
applies, and no such waiver shall be valid after the beginning of
the period of military service if executed by an individual who
subsequent to the execution of such waiver becomes a person in
military service, or if executed by a dependent of such
individual, unless executed by such individual or dependent
during the period specified in section 106 [50 USC Appx.  516].

 514.  Extension of benefits to citizens serving with forces of
war allies

Persons who serve with the forces of any nation with which the
United States may be allied in the prosecution of any war in
which the United States engages while this Act [50 USC Appx.
501 et seq.] remains in force and who immediately prior to such
service were citizens of the United States shall, except in those
cases provided for in section 512 [50 USC Appx.  572], be
entitled to the relief and benefits afforded by this Act [50 USC
Appx.  501 et seq.] if such service is similar to military
service as defined in this Act [50 USC Appx.  501 et seq.],
unless they are dishonorably discharged therefrom, or it appears
that they do not intend to resume United States citizenship.

 515.  Notice of benefits to persons in and persons entering
military service

The Secretary of War and the Secretary of the Navy shall make
provision, in such manner as each may deem appropriate for his
respective Department, to insure the giving of notice of the
benefits accorded by this Act [50 USC Appx.  501 et seq.] to
persons in and to persons entering military service.  The
Director of Selective Service shall cooperate with the Secretary
of War and the Secretary of the Navy in carrying out the
provisions of this section.

/* Now it's the Secretary of Defense's Job */

 516.  Extension of benefits to persons ordered to report for
induction or military service

Any person who has been ordered to report for induction under the
Selective Training and Service Act of 1940, as amended, shall be
entitled to the relief and benefits accorded persons in military
service under article I, II, and III of this Act [50 USC Appx.
510 et seq., 520 et seq., 530 et seq.] during the period
beginning on the date of receipt of such order and ending on the
date upon which such person reports for induction; and any member
of the Enlisted Reserve Corps who is ordered to report for
military service shall be entitled to such relief and benefits
during the period beginning on the date of receipt of such order
and ending on the date upon which he reports for such service.

 517.  Effect on rights, remedies, etc., pursuant to written
agreements entered after commencement of military service

Nothing contained in this Act [50 USC Appx.  501 et seq.] shall
prevent --

     (a) the modification, termination, or cancellation of any
     contract, lease, or bailment or any obligation secured by
     mortgage, trust deed, lien, or other security in the nature
     of a mortgage or

     (b) the repossession, retention, foreclosure, sale, forfei-
     ture, or taking possession of property which is security for
     any obligation or which has been purchased or received under
     a contract, lease, or bailment,

pursuant to a written agreement of the parties thereto (including
the person in military service concerned, or the person to whom
section 106 [50 USC Appx.  516] is applicable, whether or not
such person is a party to the obligation), or their assignees,
executed during or after the period of military service of the
person concerned or during the period specified in section 106
[50 USC Appx.  516].

/* The essence of the Soldier's and Sailor's Civil Relief Act
is that as to obligations entered into PRIOR to going into
military service, the military personnel and those contingently
or jointly liable on a debt or in a suit MAY be protected until
the military personnel are no longer in the service. Thus, it
is necessary to be aware if you are suing a member of the
military that you are subject to the act. Likewise, if you are
a member of the military you have the protections described in
the act. But the act does not apply as to debts incurred once
someone is in the military service. */

ARTICLE II.  GENERAL RELIEF

 520.  Default judgments; affidavits; bonds; attorneys for
persons in service

(1) In any action or proceeding commenced in any court, if there
shall be a default of any appearance by the defendant, the
plaintiff, before entering judgment shall file in the court an
affidavit setting forth facts showing that the defendant is not
in military service.  If unable to file such affidavit plaintiff
shall in lieu thereof file an affidavit setting forth either that
the defendant is in the military service or that plaintiff is not
able to determine whether or not defendant is in such service.
If an affidavit is not filed showing that the defendant is not in
the military service, no judgment shall be entered without first
securing an order of court directing such entry, and no such
order shall be made if the defendant is in such service until
after the court shall have appointed an attorney to represent
defendant and protect his interest, and the court shall on
application make such appointment.  Unless it appears that the
defendant is not in such service the court may require, as a
condition before judgment is entered, that the plaintiff file a
bond approved by the court conditioned to indemnify the
defendant, if in military service, against any loss or damage
that he may suffer by reason of any judgment should the judgment
be thereafter set aside in whole or in part.  And the court may
make such other and further order or enter such judgment as in
its opinion may be necessary to protect the rights of the
defendant under this Act [50 USC Appx.  501 et seq.].
Whenever, under the laws applicable with respect to any court,
facts may be evidenced, established, or proved by an unsworn
statement, declaration, verification, or certificate, in writing,
subscribed and certified or declared to be true under penalty of
perjury, the filing of such an unsworn statement, declaration,
verification, or certificate shall satisfy the requirement of
this subdivision that facts be established by affidavit.

/* Some Courts are very serious about enforcing this regulation,
others are not. In any event in order to avoid a collateral
attack on a lawsuit you might be forced to bring, be sure that
you are not suing someone protected by the act, and do provide
an affidavit of non-military service.*/

(2) Any person who shall make or use an affidavit required under
this section, or a statement, declaration, verification, or
certificate certified or declared to be true under penalty of
perjury permitted under subdivision (1), knowing it to be false,
shall be guilty of a misdemeanor and shall be punishable by
imprisonment not to exceed one year or by fine not to exceed
$1,000, or both.

(3) In any action or proceeding in which a person in military
service is a party if such party does not personally appear
therein or is not represented by an authorized attorney, the
court may appoint an attorney to represent him; and in such case
a like bond may be required and an order made to protect the
rights of such person.  But no attorney appointed under this Act
[50 USC Appx.  501 et seq.] to protect a person in military
service shall have power to waive any right of the person for
whom he is appointed or bind him by his acts.

(4) If any judgment shall be rendered in any action or proceeding
governed by this section against any person in military service
during the period of such service or within thirty days
thereafter, and it appears that such person was prejudiced by
reason of his military service in making his defense thereto,
such judgment may, upon application, made by such person or his
legal representative, not later than ninety days after the
termination of such service, to be opened by the court rendering
the same and such defendant or his legal representative let in to
defend; provided it is made to appear that the defendant has a
meritorious or legal defense to the action or some part thereof.
Vacating, setting aside, or reversing any judgment because of any
of the provisions of this Act [50 USC Appx.  501 et seq.] shall
not impair any right or title acquired by any bona fide purchaser
for value under such judgment.

/* This means that once out of the military a serviceperson has
30 days (or while they are in the service) to invoke the act
and attempt to set aside a judgment, decree or order. */

 521.  Stay of proceedings where military service affects
conduct thereof

At any stage thereof any action or proceeding in any court in
which a person in military service is involved, either as
plaintiff or defendant, during the period of such service or
within sixty days thereafter may, in the discretion of the court
in which it is pending, on its own motion, and shall, on
application to it by such person or some person on his behalf, be
stayed as provided in this Act [50 USC Appx.  501et seq.],
unless, in the opinion of the court, the ability of plaintiff to
prosecute the action or the defendant to conduct his defense is
not materially affected by reason of his military service.

 522.  Fines and penalties on contracts, etc.

When an action for compliance with the terms of any contract is
stayed pursuant to this Act [50 USC Appx.  501 et seq.] no fine
or penalty shall accrue by reason of failure to comply with the
terms of such contract during the period of such stay, and in any
case where a person fails to perform any obligation and a fine or
penalty for such nonperformance is incurred a court may, on such
terms as may be just, relieve against the enforcement of such
fine or penalty if it shall appear that the person who would
suffer by such fine or penalty was in the military service when
the penalty was incurred and that by reason of such service the
ability of such person to pay or perform was thereby materially
impaired.

 523.  Stay or vacation of execution of judgments, attachments,
etc.

In any action or proceeding commenced in any court against a
person in military service, before or during the period of such
service, or within sixty days thereafter, the court may, in its
discretion, on its own motion, or on application to it by such
person or some person on his behalf shall, unless in the opinion
of the court the ability of the defendant to comply with the
judgment or order entered or sought is not materially affected by
reason of his military service --

     (a) Stay the execution of any judgment or order entered
     against such person, as provided in this Act [50 USC Appx.
      501 et seq.]; and

     (b) Vacate or stay any attachment or garnishment of proper-
     ty, money, or debts in the hands of another, whether before
     or after judgment as provided in this Act.

 524.  Duration and term of stays; codefendants not in service

Any stay of any action, proceedings, attachment, or execution,
ordered by any court under the provisions of this Act [50 USC
Appx.  501 et seq.] may, except as otherwise provided, be
ordered for the period of military service and three months
thereafter or any part of such period, and subject to such terms
as may be just, whether as to payment in installments of such
amounts and at such times as the court may fix or otherwise.
Where the person in military service as a codefendant with others
the plaintiff may nevertheless by leave of court proceed against
the others.

 525.  Statutes of limitations as affected by period of service

The period of military service shall not be included in computing
any period now or hereafter to be limited by any law, regulation,
or order for the bringing of any action or proceeding in any
court, board, bureau, commission, department, or other agency of
government by or against any commission, department, or other
agency of government by or against any person in military service
or by or against his heirs, executors, administrators, or
assigns, whether such cause of action or the right or privilege
to institute such action or proceeding shall have accrued prior
to or during the period of such service, nor shall any part of
such period which occurs after the date of enactment of the
Soldiers' and Sailors' Civil Relief Act Amendments of 1942
[enacted Oct. 6, 1942] be included in computing any period now or
hereafter provided by any law for the redemption of real property
sold or forfeited to enforce any obligation, tax, or assessment.