BY CHELSEA ORTEGA, ESQ.
If your client is or will be an active service member, then your client enjoys significant civil protections that are unavailable to civilians. Here is an overview of key protections.
Code Reference: The protections are codified in The Service members Civil Relief Act 50 U.S.C. § 3901, et. seq.
Who Is Protected
- Active-duty members of the Army, Marine Corps, Navy, Air Force, and Coast Guard;
- Members of the Reserve component when serving on active duty;
- Members of the National Guard component mobilized under federal orders for more than 30 consecutive days; or
- Active-duty commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration.
- The servicemember is entitled to end the lease with no penalties if the servicemember enters into service, receives change of station or deployment orders, or if a stop movement order is issued.
- The servicemember must provide a written notice with a copy of the orders.
- The landlord must return prepaid rent.
- The landlord cannot enforce lease provisions that violate SCRA. See Md. Code Ann., Real Prop. § 8-208). • Any mileage requirement between the leased property and the new military station is unenforceable.
- The Act’s protections apply to mortgages obtained before service and for which service member is still obligated.
- The service member may be entitled to a stay of the foreclosure if certain criteria are met.
- The bank cannot enter the home, change locks, or shut off utilities. Riley v. Wells Fargo Bank, N.A., No. 16-CV-157-JMH, 2017 WL 2240570, at *3 (E.D. Ky. May 22, 2017).
- The creditor must have a court order to repossess — self-help is unavailable.
- The protections apply only to contracts entered into before military service.
- The court can order repayment, stay the proceedings, or “may make other disposition as is equitable to preserve the interests of all parties.”
- The service member must send the creditor a written notice and copy of military orders.
- The creditor must cap interest at 6% on certain financial obligations incurred prior to service: auto loans, credit cards, federally guaranteed student loans issued after 2008, debt incurred by a service member individually or jointly with a spouse.
- The cap applies during active service.
- For mortgages, the cap applies during active service plus one year after.
- The lender must forgive the amount of interest above 6%.
- The service member can ask for the adjustment up to 180 days after separation.
Auto Lease Cancellation
- The service members can obtain an auto lease cancellation where:
- Vehicle intended to be used by service member or dependent for personal or business transportation
- Duration of service is not less than 180 days
- Service menber receives orders for a change of permanent station:
- From a location in the continental U.S. to outside continental U.S., or
- From a location in a state outside the continental U.S. to any location outside that state
- Deploys as a unit not less than 180 days
- Stop movement order prevents service member or dependents from using the vehicle
- In order to proceed against the service member, the opposing party must file a military affidavit proving the service member is not in active service. Note: As of this writing, there is a proposed change to Md. R. Civ. P. Dist. Ct. 3-113 concerning stale military affidavits.
- The service member is entitled to a stay of proceedings and representation if certain criteria are met.
- The statute of limitations is tolled during active service.
Cause of Action & Damages
- A violation of the Act gives the service member a private right of action against the violator.
- Damages include attorney’s fees, declaratory and injunctive relief. Punitive damages at this point are a question mark.
- References: Hurley v. Deutsche Bank Trust Co. Americas, No. 08-cv-361, 2009 WL 701006, at *9 (W.D. Mich. Mar. 13, 2009); Brewster v. Sun Trust Mortgage, LLC, 742 F.3d 876, 878 n.4 (9th Cir. 2014).
Chelsea Ortega is with Santoni, Vocci & Ortega, LLC in Lutherville-Timonium, Md., where she regularly defends consumers and brings affirmative claims for violations of Maryland’s consumer protection statutes and the Fair Debt Collection Practices Act in debt collection cases, including landlord/tenant cases, automobile deficiencies, and predatory loans.