Frequent Contributor
Posts: 322
Registered: ‎11-15-2008
Re: Fair Collections & Outsourcing

guiness56 wrote:

It states clearly that if the defendant defaults in appearance, the plaintiff must file an affidavit showing the defendant is not in the military.

 

If the service member is deployed I find it hard to believe that they will even know a judgment has been entered much less to be able to act on it.

 

But, this is a discussion for elsewhere, not on this forum.

 

 


That's a common misunderstanding of many people who only know about the law what they get off a website.

 

The SSCRA and a multitude of court rulings indicate a creditor must only state in their affidavit that they believe the debtor is not on active duty.  Under no circumstances do they have to show or prove one is not.  Even if you aren't familiar with the intricacies of the law, common sense should dictate that in all default judgments the judgment creditor can not be obligated to establish every judgment debtor is not in military service.  They simply state in their affidavit that to the best of their knowledge and belief the respondant is not in military service -- ESP is not a factor.  That creditors often lie should not be surprising, should it?

 

If you are legally served you should know that there are legal proceedings against you whether or not you are in the service and / or stationed overseas.  There has to be personal service under the vast majority of scenarios.  Again, if you had the legal experience you'd realize that the law requires there to be a military necessity / that your military duty "materially" affects your ability to appear.  The simple fact that you are out of the country and / or unwilling to take vacation (annual leave) is not an excuse for a serviceman or, in fact, for any respondant in a civil action.

 

There should be a copy of the ABA judicial guideline on how judges should comply with the SSCRA somewhere online.  If anybody would like a copy and cannot find one, send me a PM.