Sometimes a servicemember’s military service precludes the servicemember’s appearance at court. Foreseeing such a situation, Congress enacted the Servicemembers Civil Relief Act (SCRA).
One of the most potent tools that the SCRA gives to servicemembers is the ability to obtain a stay of proceedings. A stay of proceedings is a court order halting the development of the case.
Section 521 Stays
Section 521 of the SCRA allows for stays when the plaintiff seeks a default judgment, which is a judgment entered in the absence of the defendant. A court can grant a Section 521 stay on its own accord, and shall grant a stay when the servicemember’s lawyer applies for one, if the court first determines one of two things. The court must determine either of the following:
1) that “there may be a defense to the action and a defense cannot be presented without the presence of the defendant;” or
2) that the servicemember’s lawyer has tried to contact the servicemember and find out if a “meritorious” defense exists, but could not do either “after due diligence.”
If the court grants the stay, the proceedings will be stopped for at least 90 days.
Section 522 Stays
Section 522 of the SCRA applies when the servicemember has received notice of the action (e.g., when the servicemember has received service of process). A court can grant a Section 522 stay on its own accord, and shall grant a stay when the servicemember applies for one. The servicemember’s application must include the following in order to get the stay:
1) “A letter or other communication” explaining how the servicemember’s service in the military “materially affect[s]” the servicemember’s ability to appear, and stating a date when the servicemember will be able to appear, and
2) “A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.”
Like Section 521 stays, Section 522 stays last for a minimum of 90 days. However, a servicemember can apply for additional Section 522 stays based on the fact that his military service continues to affect his ability to appear in court. The same information required for the initial stay application is also required for an additional-stay application.
However, the court does not have to grant an additional stay. If the court refuses to grant an additional stay, it shall appoint counsel to represent the servicemember.
Whether you are a servicemember facing a lawsuit, or a civilian trying to sue a servicemember, it is important to consult an attorney who can help explain the protections afforded to members of the military and ensure that your case proceeds fairly.
An outstanding job on my case to have custody, visitation and support decided in my home state instead of Virginia after I separated from military service.- A.E.