Blogs from April, 2017

Are you a member of the United Army Reserve who has just been called up for active duty? An active-duty Marine or Soldier who is about to be deployed for several months? A Sailor who just got notified that you will be going out to sea for another tour? If so, you may be understandably worried about how you are going to balance the demands of military service and any financial or legal obligations you currently have.

The Servicemembers Civil Relief Act (SCRA) protects U.S. service members and their families from being placed in financial or legal jeopardy as a result of their military obligations. This means that while you are defending the nation, your family will not be evicted, your home foreclosed upon, or judgments entered against you. No service member deserves that kind of homecoming.

The attorneys at MJA have successfully fought for military service members and their families who are the victims of unfair lending practices by big banks, credit card companies, car dealerships, and property management companies. Before you request relief, or if you have questions about the protections you are entitled to, call or contact a dedicated SCRA attorney today to request a confidential consultation.

History of the SCRA

The SCRA traces its origins to a Civil War moratorium that protected Union soldiers and sailors from collection actions, divorce proceedings, and other legal issues during wartime. These protections resurfaced in 1918 with the Soldiers’ and Sailors’ Civil Relief Act. The Act was revisited frequently as society changed and became the Servicemembers Civil Relief Act we know today in December of 2003.

SCRA Coverage and Protection

The SCRA offers protection under federal law to:

• All full-time active-duty personnel from all divisions of the U.S. Armed Forces;
• All active-duty Reserve personnel;
• Members of the Army and Air National Guard, provided they have been called to respond to a national emergency and their period of active duty is more than 30 days in a row;
• Active duty commissioned officers of the Public Health Service or the National Oceanic and Atmospheric Administration; and
• Dependents of service members

If a service member has given someone a Power of Attorney (POA) during their absence, the POA can request SCRA protections on their behalf. In fact, the law actually requires a court to appoint someone to represent your interests if you are on active-duty and did not designate anyone beforehand.

SCRA Provisions

The SCRA contains several provisions that protect military personnel. They include:

• Interest rates on mortgages, credit cards, federally guaranteed student loans, and other debt accumulated before you entered active duty are capped at 6%.
• Lenders may not make a negative notation on your credit report because you requested SCRA protection.
• Civil court and administrative proceedings, such as divorce or bankruptcy, may be postponed at least 90 days.
• Your landlord may not evict you or your family without getting a court order first, provided your rent does not exceed a certain amount.
• You may terminate, without penalty, residential and business leases that began before you were called to active duty.
• You may cancel motor vehicle leases if you were called to active duty 180 or more days after signing it. The lease may also be terminated if you are being deployed for over 180 days or receive a permanent posting outside the U.S..
• If military service causes you to fall behind on your mortgage or vehicle installment payments, you are protected from foreclosure and repossession actions.
• Any health or life insurance plans canceled due to your service must be reinstated.
• If military orders require you to move to another state, your legal residence for tax purposes remains the same.

It is important to remember that these provisions are not automatic: you must actively request relief in a timely manner. Written notification is necessary for some protections, while others, such as the 6% interest rate, require you to show that you have been “materially affected” by your military service.

Lease Terminations

The SCRA provides service members the right to early termination of residential and motor vehicle leases. The service member on the lease, called the lessee, may choose to terminate the lease at any time after he/she enters military service or after the date of their military orders. If a service member is a joint lessee with a dependent (like a spouse) and terminates the lease, the termination is also effective for the dependent.

The SCRA lease termination provisions apply to leases of premises, like apartments or homes, and leases of motor vehicles. Early termination of a lease of premises can be sought when a person enters military service during the term of the lease or when a service member receives military orders for a permanent change of duty station or deployment for a period of not less than 90 days.

Interest Rate Cap

The SCRA requires creditors to limit interest rates on applicable debt to 6% while the service member is on active duty. These protections apply to many types of debt, but the most common include credit card debt, truck or car loans, and mortgages. Debt in the form of a mortgage or deed of trust will be limited for an additional year after active duty has ended.

Another advantage of these protections is that interest in excess of 6% is forgiven. When interest is forgiven, the creditor is required to reduce the service member’s payment amounts by the amount of the interest forgiven. In some cases, this can be a big benefit to service members as it reduces minimum monthly payments on debt.

Mortgage Foreclosure Protection

The SCRA has special provisions with regard to mortgages and deeds of trust. These provisions only apply to obligations on real or personal property owned by a service member which began before military service and is secured by a mortgage, trust deed, or something similar. If a service member has an obligation to which these provisions apply, the SCRA offers protections against actions on the mortgage or trust deed and sale or foreclosure.

If a party files an action to enforce an obligation under a mortgage or deed of trust during or within one year of a service member’s military service, the court may either stay (put on hold) the proceedings or adjust the obligation, such as a change in payment amount. If the service member can show that his or her ability to comply with the obligation is materially affected by military service, then the court is required to enter a stay or adjust the obligation.

The SCRA offers stringent protections against the sale, foreclosure, or seizure of property for a breach of an obligation against the property. The SCRA provides that no sale, foreclosure, or seizure is valid if made during or within one year of military service. There are two exceptions to this rule. The first is when a court grants an order before the sale, foreclosure, or seizure with a return made and approved by the court. The second is when the parties execute a valid waiver under the waiver provisions of the SCRA in Section 3918.

Vehicle Repossession

The SCRA provides strong protections for service members under installment contracts for lease or purchase. The SCRA states that contracts by service members for real or personal property, whether to own or lease, may not be rescinded (cancelled) or terminated for a breach of contract by the service member. Additionally, the property under the contract may not be repossessed without a court order. These protections only apply to contracts for which a deposit or installment is paid before the service member enters military service.

In order for a repossession to occur, the lien holder must seek a court order. The court hearing the case may order that the service member is refunded all or part of payments under the contract as a condition of the lien holder repossessing the property. The court may also either stay (put on hold) the proceedings as long as necessary or make another decision that the court believes is fair to all parties.

Protect Your Rights Under the SCRA

The SCRA offers significant protections to U.S. military personnel, but like most laws, it can be complicated to navigate. The attorneys at MJA have successfully fought for military service members and their families who are the victims of unfair lending practices by big banks, credit card companies, car dealerships, and property management companies. Before you request relief, or if you have questions about the protections you are entitled to, call or contact a dedicated SCRA attorney today to request a confidential consultation.

The post An Introduction to the SCRA appeared first on Military Justice Attorneys.

The Fifth Amendment to the United States Constitution protects civilians against compulsory self-incrimination. In the seminal case of Miranda v. Arizona (1966), the United States Supreme Court ruled that when a person is interrogated while in police custody, they must be read their Miranda rights. These protections include not only the right to remain silent, but also the right to have a lawyer present during questioning and the right to a court-appointed attorney, if you can’t afford one.

Article 31(b) of the Uniform Code of Military Justice (UCMJ) provides similar, but slightly different, protections to service members. It’s critical that service members under investigation or facing adverse action fully understand their rights.

Right Against Self-Incrimination under Article 31(b), UCMJ

Article 31(b) states that “no person subject to this chapter may interrogate, or request any statement from, an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.”

In short, this means that a service member accused or suspected of an offense may not be interrogated or asked to provide an incriminating statement without first being informed:

1. Of the nature of the accusation;
2. That they have the right to remain silent; and
3. That any statement made may be used as evidence against them in a trial by court-martial.

The protections for service members under Article 31 are different from Miranda rights in a few important ways. First, service members must be told what crime they are accused of under Article 31(b); with Miranda, you are not. Additionally, service members must told of their Article 31(b) rights any time they are being questioned, not just when they are in custody, as with civilians under Miranda. Finally, service members are NOT required to be told that they may have counsel present before or during the investigation. This is what we are here for at Military Justice Attorneys.

Article 31, UCMJ, Applies to Anyone “Subject to the Code”

It’s important to note that the requirements of Article 31, UCMJ, only apply to those “subject to the code” (referring to the Uniform Code of Military Justice). ” This includes active duty service members as well as any “knowing agent of any such person or of a military unit.”

For example, in a case out of Camp Lejeune, North Carolina, military prosecutors were able to have a Wounded Warrior Care Coordinator, who was a civilian and not “subject to the code”, testify against the accused. Specifically, the Care Coordinator was allowed to testify to admissions made by the accused about the night in question even though the Care Coordinator suspected the accused of wrongdoing and failed to provide Article 31(b) warnings.

In contrast, the accused’s Staff Non-commissioned Officer, who was “subject to the code,” was NOT allowed to testify after failing to advise the accused of her Article 31(b) rights prior to questioning.  

Admissibility of Statements Obtained in Violation of Article 31, UCMJ

A statement obtained from an accused or suspect in violation of Article 31 is generally considered involuntary and therefore inadmissible at court-martial. While statements involuntarily obtained cannot be used against an accused for the ultimate fact at issue — guilt or innocence — military prosecutors may be able to use such statements at trial for other purposes, such as lack of mistake or consciousness of guilt. 

Service members being questioned may feel pressured to answer a superior or a higher ranking official. If this happens, don’t say or write down anything. Clearly state that you wish to have an attorney present, and that you wish to exercise your Article 31(b) rights.

Remember, investigators are not your friend. They are there to draw information from you and use it against you in any way if you are a suspect. Of course, do not lie if you do speak to them because that will only make the situation worse.

Contact MJA Today

If you are under investigation or facing court-martial, it is of the utmost importance that you contact an experienced attorney. The most important rule to remember is to never talk to anyone without an attorney present. Military Justice Attorneys stands ready to fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Article 31(b) Rights: What Every Service Member Needs to Know appeared first on Military Justice Attorneys.