To all of our beloved Service Members, reservist and Members of the National Guard. Your credit is very important to your future while on active duty and after your service. Please be aware of the benefit afforded to you when on Active Duty. These rights are there for you to prevent being taking advantage of when on Active Duty. We thank you for your service!
Below is a list of the protections that the SCRA affords to our active duty members.
Benefit and Protection No. 1 – The six percent interest rate cap. 50 U.S.C. § 3937
The SCRA limits the amount of interest that may be charged on certain financial obligations that were incurred prior to military service to no more than six percent per year, including most fees. 50 U.S.C. § 3937(a)(1) & (d)(1). In order to have the interest rate on a financial obligation such as a credit card or a mortgage capped at six percent per year, a servicemember must provide the creditor with written notice and a copy of his or her military orders or “other appropriate indicator of military service” (such as a letter from a commanding officer). Id. at § 3937(b)(1). The written notice and proof of military service must be provided to the creditor within 180 days of the end of the servicemember’s military service. Id.
In response, a creditor must forgive – not defer – interest greater than six percent per year. See 50 U.S.C. § 3937(a)(2). The creditor must forgive this interest retroactively. See id. at § 3937(a)(1) & (b)(2). The creditor is also prohibited from accelerating the payment of principal in response to a properly made request for a six percent interest rate cap. Id. at § 3937(a)(3).
For mortgages, interest is capped at six percent during the entire period of military service and for one year after the period of military service. 50 U.S.C. § 3937(a)(1)(A). For all other obligations, interest is capped at six percent only for the duration of the period of military service. Id. at § 3937(a)(1)(B).
A hypothetical under Section 3937 of the SCRA, 50 U.S.C. § 3937: John Doe takes out a mortgage and then enters military service. Captain John Doe is in military service continuously for 20 years. Captain Doe retires from military service and on the 179th day of his retirement asks that the interest rate on his mortgage be lowered to six percent per year. Captain Doe provides his creditor with a written notice and a copy of all of his military orders. The creditor must forgive the entire 20 years of interest that was at a rate greater than six percent – inclusive of fees – and an additional year of interest going forward. See, generally, 50 U.S.C. § 3937.
The following types of financial obligations, among others, are currently eligible for the six percent SCRA interest rate benefit: credit cards; automobile, ATV, boat and other vehicle loans; mortgages; home equity loans; and student loans. See, e.g., 50 U.S.C. § 3937(d)(2).
On August 14, 2008, President Bush signed into law the Higher Education Opportunity Act, P.L. 110-315, that, among other things, amended 20 U.S.C. § 1078(d) to make federally guaranteed student loans protected under the SCRA. That means that prior to August 14, 2008, the SCRA did not cover federally guaranteed student loans. So, for federally guaranteed student loans that originated before August 14, 2008, such as student loans that originated under the Federal Family Education Loan (“FFEL”) Program and Direct Loans from the Department of Education, the servicemember borrower is not covered by the SCRA.
A student loan hypothetical under Section 3937 of the SCRA, 50 U.S.C. § 3937: John Doe takes out five private student loans prior to entering into military service. After entering military service, Servicemember Doe consolidates his five loans into one loan. Six months later, he hears about the SCRA’s six percent interest rate cap and requests that the interest rate on his loan be lowered to six percent per year. He sends in a written notice and a copy of his military orders.
Question: Is Servicemember Doe entitled to the six percent interest rate cap?
Answer: Only for the period of time between when he entered military service and when he consolidated his private student loans. Servicemember Doe’s existing student loan originated during a period of military service. See 50 U.S.C. § 3937(a)(1).
Benefit and Protection No. 2 – Protections against default judgments. 50 U.S.C. § 3931.
In any civil court proceeding in which the defendant servicemember does not make an appearance, a plaintiff creditor must file an affidavit with the court stating one of three things: 1) that the defendant is in military service; 2) that the defendant is not in military service; or 3) that the creditor is unable to determine whether or not the defendant is in military service after making a good faith effort to determine the defendant’s military service status. Id. at § 3931(b)(1). This comes up most frequently for the Department of Justice in the context of judicial foreclosure proceedings. [Note: Foreclosures typically proceed in one of two ways, either judicially (through a court process), or non-judicially (without a court’s involvement). The way in which the SCRA treats the two types of foreclosure proceedings is very different, see 50 U.S.C. §§ 3931, 32 & 53, and states typically specify which way foreclosures may proceed within their borders.]
To verify an individual’s military service status, one may search the Department of Defense’s Defense Manpower Data Center (“DMDC”) database. This database may be located online at: https://scra.dmdc.osd.mil/.
The SCRA states that for civil court proceedings where a defendant servicemember has not made an appearance and it seems that he or she is in military service, a court may not enter a default judgment against that defendant until after it appoints an attorney to represent the interests of that defendant servicemember. 50 U.S.C. § 3931(b)(2). The court must stay a civil court proceeding for at least 90 days if that appointed attorney has been unable to contact the defendant servicemember, or if there may be a defense to the action that requires that the defendant be present. Id. at § 3931(d).
Benefit and Protection No. 3 – Non-judicial foreclosures. 50 U.S.C. § 3953.
Section 3953 of the SCRA, 50 U.S.C. § 3953, addresses the topic of mortgages and non-judicial foreclosures. See id. In order for a servicemember to receive the protections of Section 3953 of the SCRA, the “obligation on real or personal property” needs to have been taken out prior to the servicemember entering military service. Id. at § 3953(a)(1).
Under Section 3953 of the SCRA, 50 U.S.C. § 3953, during a period of military service, and for one year after a period of military service (the “tail coverage” period), a creditor must get a court order prior to foreclosing on a mortgage. Id. This is a strict liability section of the SCRA, and a person who knowingly violates this provision may be fined and/or imprisoned for up to one year. Id. at § 3953(d).
The tail coverage period described above has changed over time. The following is a summary of the tail coverage period over the years under 50 U.S.C. § 3953:
· December 19, 2003 to July 29, 2008 – 90 days
· July 30, 2008 to February 1, 2013 – Nine months
· February 2, 2013 to December 31, 2015 – One year
· January 1, 2016 to March 30, 2016 – 90 days. However, on March 31, 2016, the Foreclosure Relief and Extension for Servicemembers Act of 2015 was signed into law. See Foreclosure Relief and Extension for Servicemembers Act of 2015, Pub. L. No. 114-142, 130 Stat. 326 (2016). This extended the tail coverage period for non-judicial foreclosures back to one year, and made this change retroactive to January 1, 2016. See id.
· March 31, 2016 to present – One year
On May 24, 2018, the President signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act, Pub. L. No. 115-174. Section 313 provides for a permanent extension of the Section 3953 (non-judicial foreclosure) one-year tail coverage period.
Courts have the ability under the SCRA, and a duty in certain instances, to stay a non-judicial foreclosure proceeding or adjust the payments, if the servicemember’s ability to meet the obligation is materially affected because of his or her military service. 50 U.S.C. § 3953(b).
Benefit and Protection No. 4 – Installment contracts and repossessions – 50 U.S.C. § 3952.
The SCRA states that a creditor may not repossess a vehicle during a borrower’s period of military service without a court order as long as the servicemember borrower either placed a deposit for the vehicle, or made at least one installment payment on the contract before entering military service. 50 U.S.C. § 3952.
Benefit and Protection No. 5 – Residential (apartment) lease terminations – 50 U.S.C. § 3955.
Section 3955 of the SCRA, 50 U.S.C. § 3955, addresses the topic of lease terminations. With respect to residential apartment leases, the SCRA requires that the premises be occupied (or are intended to be occupied) by a servicemember or a servicemember’s dependent(s). 50 U.S.C. § 3955(b)(1). Additionally, the lease must either be executed by a person who later enters military service, or is in military service and later receives permanent change of station (“PCS”) orders or deployment orders for a period of at least 90 days. Id. at § 3955(a)(1). To terminate a residential lease, the servicemember must submit a written notice and a copy of his or her military orders – or a letter from a commanding officer – by certain methods to the landlord or landlord’s agent. Id. at § 3955(c) & (i)(1). If a servicemember pays rent on a monthly basis, once he or she gives proper notice and a copy of his or her military orders, then the lease will terminate 30 days after the next rent payment is due. 50 U.S.C. § 3955(d)(1). If a servicemember lessee dies while in military service, the spouse of a lessee may terminate the lease within one year of the death. Id. at § 3955(a)(3).
A lease termination hypothetical under Section 3955 of the SCRA, 50 U.S.C. § 3955: Jane Servicemember receives PCS orders to transfer from Iowa to Texas. She gives her landlord written notice of her intent to terminate her apartment lease and a copy of her PCS orders on September 18th. Her next rent payment is due on October 1st. The effective date of the lease termination will be Halloween – October 31st. See, generally, 50 U.S.C. § 3955.
Benefit and Protection No. 6 – Enforcement of Storage Liens – 50 U.S.C. § 3958.
Section 3958 of the SCRA states that a person holding a lien on the property of a servicemember, such as a storage facility or a tow company, may not enforce the lien (dispose of the property) without a court order during the servicemember’s period of military service and 90 days thereafter. 50 U.S.C. § 3958.
You can obtain further information from https://www.justice.gov/servicemembers/servicemembers-civil-relief-act-scra.