What transpires if a soldier deployed abroad is brought before a civil judge? A military affidavit confirming the defendant’s active-duty status may be required. What is a military affidavit exactly? An affidavit is a written declaration sworn under oath for use in court proceedings.
An official document that certifies whether someone is serving in the military is known as a military affidavit. Military affidavits are frequently used in court to establish a defendant’s status as an active duty service member. When a defendant is unable to appear in court because of military responsibilities, most courts halt civil proceedings.
An SCRA Affidavit: What Is It?
A servicemembers affidavit of military service is also known as the SCRA affidavit. To safeguard service members’ rights while they are engaged in military or uniformed service, Congress passed the Service Members Civil Relief Act (SCRA). The statute applies and provides the following protections:
- Active duty personnel in the US military
- Participants in the Reserve component while on active duty
- For 30 days, the National Guard component mobilized.
- Public Health Service commission holders who are currently on duty
- Commissioned members of the National Oceanic and Atmospheric Administration who are currently on active duty
The SCRA offers protection from default judgments in civil matters as one of its provisions. In a legal lawsuit, the judge may grant the plaintiff a default judgment if the defendant fails to show up in court. The SCRA guards against this result.
The SCRA requires the party suing a military member to submit an affidavit confirming whether the defendant is currently serving on active duty. When a service member’s active-duty status is established by an affidavit, the courts are prohibited from entering a default judgment until one year after their service is completed.
In addition to safeguarding against default judgments, the SCRA also guards against property forfeiture, home foreclosure, and lease termination for residential or vehicular space. Attorneys general has the power to sue people who break the SCRA in federal court.
Military affidavits differ depending on the jurisdiction. The average affidavit, however, just has a few sections.
Normally, the plaintiff must mark a box to confirm that the defendant is serving in the military. The sources they used to confirm the defendant’s status must also be disclosed.
Who is eligible for a Military Affidavit?
When a service member is unable to present in court, the plaintiff or the plaintiff’s attorneys are responsible for procuring a military affidavit. One of the following three items must be included in the affidavit:
- The accused is serving in the military.
- The defendant is not a member of the military.
- The plaintiff is unable to ascertain if the defendant is enlisted in the military.
Using the Defense Manpower Data Center (DMDC) database, people can check a soldier’s status as a military service member.
Additionally, until a defendant appoints a lawyer to represent its interests, the court cannot rule in its favor by default. The court must postpone the proceedings for at least 90 days if the designated lawyer is unable to get in touch with the defendant.
Do Foreclosures Fall Under This?
Service members are shielded from nonjudicial foreclosures by Section 3953 of the SCRA. However, military affidavits are most frequently employed as a defense against legal foreclosure actions.
Both judicial and nonjudicial foreclosures are possible. In contrast to nonjudicial foreclosures, judicial foreclosures are handled by the court system. It is possible to halt the civil lawsuit for judicial foreclosure with a military affidavit.
Since the SCRA already provides protections against nonjudicial foreclosures, service members do not need a military affidavit. A court order is required by the SCRA before a creditor can foreclose on a property owned by an active service member.
The SCRA protects active duty military members from nonjudicial foreclosures and provides protections for a tail coverage period. One year after a period of military duty is the tail coverage period.
Are Military Affidavits Required to Prevent Repossessions?
A creditor trying to reclaim something from a service member, like a car, might need a military affidavit.
Active-duty service members are shielded against repossessions while serving their country under the SCRA. To finalize the repossession, the creditor needs a court order, and some courts could ask for an affidavit to confirm that the service member is no longer on active duty.