What happens when a soldier who is on active duty is hauled before a civil judge? It might be necessary to provide a military affidavit attesting to the defendant’s active-duty status. What precisely is a military affidavit? A written declaration made under oath and used in court proceedings is known as an affidavit.
A military affidavit is an official document that proves someone is currently serving in the military. Courts routinely employ military affidavits to prove a defendant’s status as a current duty service member. Most courts halt civil proceedings when a defendant is unable to appear in court due to military obligations.
What Is an SCRA Affidavit?
The SCRA affidavit is another name for a servicemember’s affidavit of military service. The Service Members Civil Relief Act was passed by Congress to protect service members’ rights while they are performing military or uniformed service (SCRA). The law is applicable and offers the following safeguards:
- US military soldiers currently on active duty
- When on active service, Reserve component members
- The National Guard component mobilized for 30 days.
- Commission holders in the Public Health Service who are currently on duty
- Active duty commission holders with the National Oceanic and Atmospheric Administration
One of the clauses of the SCRA provides protection from default judgments in civil cases. In a court case, if the defendant does not appear, the judge may award the plaintiff a default judgment. The SCRA protects against this outcome.
According to the SCRA, the party suing a service member must provide an affidavit stating whether the defendant is actively engaged in active duty. The courts cannot render a default decision until a year after the service member’s active-duty status has ended when it is established by an affidavit.
The SCRA protects against property seizure, home foreclosure, and lease termination for residential or vehicular space in addition to default judgments. Attorneys general is authorized to file lawsuits in federal court against those who violate the SCRA.
There are different military affidavits based on jurisdiction. However, the typical affidavit just comprises a few components.
In most cases, the plaintiff must check a box to indicate that the defendant is a member of the armed forces. They must also reveal the sources they used to confirm the defendant’s status.
For whom is a Military Affidavit appropriate?
The plaintiff or the plaintiff’s counsel is responsible for obtaining a military affidavit when a service member is unable to appear in court. The affidavit must include one of the following three things:
- The alleged offender is a soldier.
- The accused does not serve in the military.
- The plaintiff is unable to determine if the defendant is a military enlistee.
People can look up a soldier’s status as a military service member using the Defense Manpower Data Center (DMDC) database.
Additionally, the court cannot automatically find in favor of a defendant before it employs a lawyer to advocate its interests. If the authorized attorney is unable to contact the defendant, the court must halt the proceedings for at least 90 days.
Are Foreclosures Included in This?
Section 3953 of the SCRA protects service members against nonjudicial foreclosures. However, defense against judicial foreclosure procedures is where military affidavits are most regularly used.
Foreclosures may occur in both judicial and extrajudicial settings. Judicial foreclosures, in contrast to nonjudicial foreclosures, are managed through the legal system. A military affidavit may be used to stop civil litigation for judicial foreclosure.
Service members do not require a military affidavit because the SCRA already protects them from nonjudicial foreclosures. The SCRA states that a creditor cannot foreclose on a property owned by an active service member without a court order.
The SCRA offers protections against nonjudicial foreclosures and a tail coverage period to active duty military personnel. The tail coverage period is the first year following a stint of military service.
Do Military Affidavits Need to Be Submitted to Stop Repossessions?
A military affidavit could be required if a creditor is attempting to recover anything from a service member, such as a car.
The SCRA protects active-duty service members from repossessions while they are serving their country. The creditor needs a court order to complete the repossession, and some courts could want an affidavit to establish that the service member is no longer on active duty.
