Articles

Protections Afforded to Your Neighbors in the Military: The Servicemembers Civil Relief Act for Community Associations

Date: February 6, 2020
Community associations, as a general rule, have greater success in collecting delinquent assessments if they act promptly to collect such amounts from the delinquent owner.  Federal law, however, makes this more difficult and time consuming when the delinquent owner is a military service member.  The same law can delay any lawsuit involving a servicemember, including those brought for covenant enforcement.  Associations are not without enforcement options when dealing with service member owners, but should prepare themselves for legal proceedings to take longer and involve greater cost.  To avoid or reduce these difficulties, associations should consider using their internal procedures to resolve delinquencies and covenant disputes with service members before proceeding with a lawsuit.
 
Intuition says that the call of duty to defend the country should transcend the obligations created by covenants, mortgages, and, seemingly meager by comparison, the collections resolution.  The law agrees.  Congress enacted the Servicemembers Civil Relief Act (the “Act”) to protect those who are deployed without the opportunity to handle their financial affairs.[1]  Congress likely anticipated a coming war when enacting the Act, first known as The Soldiers' and Sailors' Civil Relief Act of 1940, on October 17, 1940.[2] In little more than a year, Japan and Germany declared war on the United States, which within days lead the United States to reciprocate and enter World War II on December 11, 1941.  The War ended, but the Act remained.  Virginia associations have been subject to the Act since their inception, and have always needed to be aware that their servicemember members have far more rights, especially if a lawsuit is filed, than their civilian neighbors.[3]      
 
The Act affects any civil case in which an association may be involved, whether as a creditor with a claim for unpaid assessments, or as a complainant seeking an injunction from a covenant violation.[4] In any action an association commences, it must file an affidavit saying whether the defendant is in the military and the facts supporting such conclusion before a court will grant the association any relief.[5] To establish the status of service of a defendant, an association can obtain and rely on the Military Status Verification available on the Department of Defense Manpower Data Center website. [6]  

If the affidavit establishes that a defendant is in the military and the defendant fails to make an appearance in the case, the court will appoint an attorney to represent the servicemember before allowing the case to proceed.[7] That attorney is charged with reaching out to the defendant servicemember to determine if a deployment or other military service prevents the defendant from participating in the court proceeding.  The attorney or the court must move to stay the case at least 90 days if there is a defense to the action, which cannot be presented without the presence of the defendant or the attorney could not contact the defendant or determine if the defendant has a meritorious defense to the lawsuit.[8] The stay can then be extended in the court’s discretion as needed to accommodate the defendant’s military service.[9] Even if the court grants a default judgment after the stay, that judgment may still be vacated if the defendant’s deployment materially affected the service member’s ability to make a meritorious defense before judgment was entered.[10] While the materiality can be a nebulous concept, especially if the defendant had leave from military duty at the time of the default judgment, at least one Virginia court burdened the defendant with showing his or her whereabouts at the time of judgment and proving that military service truly prevented participation and defense of that suit. [11]

Even if a defendant service member has notice of a case or has appeared in it, the case may still be stayed, albeit in much more limited circumstances.[12] In this instance, the defendant or the court first must move to stay the case at least 90 days if there are facts submitted supporting the defendant’s military duties materially affect his or her ability to appear in court, and the defendant’s commanding officer also submits a letter that the defendant’s duty prevents him or her from appearing in court and leave is not authorized for that purpose.[13] The court then decides whether there is a material effect on the defendant’s ability to appear before granting the stay.  The U.S. Supreme Court has held that a court must consider not only whether a defendant servicemember has the ability to attend the trial but also adequate time and opportunity to prepare his or her defenses. [14] If a request for an extension of stay is denied after a defendant has appeared, an attorney is appointed for him or her.[15]

The Act’s impact is not limited to the increased procedural requirements for getting a judgment against a defendant service member.  Substantively, the Act grants additional rights a defendant in the military that may affect obligations owed to associations.  A court may waive any fine or penalty if payments were materially affected by service.[16] If, for example, military service prevented the timely payment of assessments, the court may strike any late fees on the service member’s account.  Garnishments may be stayed too, preventing collection of judgments that have already been entered against the service member.[17]

A court’s authority to reduce late fees and other penalties under the Act does not, however, create an obligation on the association to forego such remedies prior to trial.  Associations should continue to apply late fees and penalties consistent with their governing documents and collection resolutions.  The court will determine, after the filing of the suit, if such fees and penalties should be waived based on the defendant’s military service.  Further, a court’s authority to waive fees and penalties does not extend to waiving assessment obligations or other financial obligations that a service member has to the association under the governing documents.[18]

A defendant in the military may waive any of the rights under the Act provided the waiver is contained in a document separate from the one that creates liability, which for an association is its covenants, and the defendant signs the waiver while in the service, not before.[19]  It is unlikely, however, that a service member would give up the protections offered by the Act.  Given these protections available to service members as part of a court proceeding and the increased expense they represent for the association, boards and managers should give consideration to using internal procedures to bring service members into compliance.  Greater efforts to reach out to the service members and get them started on payment plans or increased opportunities to correct covenant violations often yield compliance by the service members faster and less expensively than possible in light of the Act.

Military bases span Virginia from Arlington and Quantico to Newport News and Chesapeake.  Our neighbors who serve we thank and with this article hope to educate associations and service members alike on handling lingering obligations when deployments occur. 

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Whiteford, Taylor and Preston’s Community Association attorneys have a Piedmont & Tidewater Committee who specialize representing associations including Marla Diaz in Richmond and Chad Rinard in Fredericksburg.  Ed O’Connell is a mentor to each.  Our friend, Kathleen Panagis, an attorney who represents associations in the Virginia Beach area, contributed to this article.  If you would like to discuss your association’s legal needs in any of these areas with us, please do not hesitate to call. 

[1] Perhaps without the citation to Article I, Section 8 of the U.S. Constitution that is due, Congress clearly intended the Act to provide for national defense.  50 U.S.C.A. § 3902.  
[2] On December 19, 2003, Congress amended the name of the Act to its present day iteration.  Pub. L. No. 108–189, 117 Stat. 2835, et seq. (2003). 
[3] In Virginia, the Horizontal Property Act was passed in 1962, the Condominium Act in 1974 and the Property Owners’ Association Act in 1989. 
[4] 50 U.S.C.A. § 3931 (a).
[5] 50 U.S.C.A. § 3931 (b)(1)(A).  See also, Citibank (South Dakota), N.A. v. Birrell, 60 Va. Cir. 189, 190-91 (2002).  
[6] www.servicememberscivilreliefact.comSee Financial Pacific Leasing, Inc. v. Blackwater Transport, Inc., 2014 WL 12662305 *2 (E.D. Va. 2014).  In the alternative, the association can affirm the defendant’s service status cannot be determined subject to filing a bond if the court requires.  50 U.S.C.A. § 3931 (b)(1)(B) & (b)(3).
[7] 50 U.S.C.A. § 3931 (b)(2).
[8] 50 U.S.C.A. § 3931 (d).  See also, Raftery v. Bruner, 1 Va. Cir 43, 44 (1965).
[9] Presumptively, the stay can be extended in court proceedings for foreclosures too.  See, Higgins v. Timber Springs Homeowners Ass'n, Inc., 126 So.3d 394, 396-97 (Fl. 2013) 
[10] 50 U.S.C.A. § 3931 (g).
[11] Flynn v. Great Atlantic Management Co., Inc., 246 Va. 93, 96, 431 S.E.2d 327, 329 (1993); Williams v. Williams, 184 Va. 124, 126, 34 S.E.2d 378, 379 (1945).
[12] 50 U.S.C.A. § 3932 (b)(1).
[13] 50 U.S.C.A. § 3932 (b)(2).  See also, Lackey v. Lackey, 222 Va. 49, 52, 278 S.E.2d 811, 812 (1981)(holding that service on board a Navy ship on sea duty coupled with the inability to leave the ship was a material effect).
[14] Boone v. Lightner, 63 S.Ct. 1223, 1229 (1943).
[15] 50 U.S.C.A. § 3932 (d)(2).
[16] 50 U.S.C.A. § 3933 (b)(2).
[17] 50 U.S.C.A. § 3934 (a).
[18] There is no case of which these authors are aware that assessments are “in the nature of a mortgage,” which if true may allow a defendant in the military to request an interest rate to be reduced to 6%, or a stay of a non-judicial foreclosure. 50 U.S.C.A. § 3937 (a)(1) & § 3953 (a).  See also, Gentle Winds Management Corp. v. Short, 20 V.I. 41, 43-44 (1983).
[19] 50 U.S.C.A. § 3918 (a).