Re: Fair Collection
s & Outsourcin g
09-12-2009 07:00 AM
I do believe you are incorrect on this.
(50 U.S.C. App. § 520)
In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before 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. 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 subsection that facts be established by affidavit.
I would say that if you are deployed you are unavailable to show up in court. And if you are depolyed how are you going to know a judgment has been entered against you. More than likely you will not.
Not likely to be incorrect as I have been in SJA (JAG) now for over 25 years.
All the creditor has to do is state in their affidavit that they believe you are not on active military duty. If the creditor is mistaken, it is up to the servicemember to notify the court -- best with written confirmation from the individual's commanding officer -- that the servicemember is not available to appear because of military necessity. If the letter is written by SJA, it is best that the military attorney specify that he does not represent the servicemember so that the letter is not considered appearance by counsel.
Being deployed does not automatically mean you are unavailable. If military personnel have certain non-criminal judicial proceeding pending, and their military duty "materially" affects their ability to appear at the proceeding, the SSCRA now requires the courts to grant an automatic 90-day stay when requested by the service member. In short, there must be a military necessity and being stationed outside of the US does not automatically mean you are entitled to a 90-day stay.
If you request a second stay and the court denies that stay, the court must then appoint an attorney to defend your interests in the proceeding. This, however, is not always to the servicemember's advantage.
Courts have a lot of discretion in how they handle SSCRA cases and the above represents what is minimally required.