Servicemembers Civil Relief Act
Because military service can interfere with the ability of servicemembers to fulfill their financial obligations or assert their legal rights, the United States Congress has implemented special laws protecting the rights and obligations of military personnel. The Servicemembers Civil Relief Act of 2003 (“SCRA” or the “Act”), 50 U.S.C. §§ 3901–4043, previously known as the Soldiers’ and Sailors’ Civil Relief Act of 1940, provides certain military-connected individuals and their families with a wide range of consumer and legal protections, including protection from foreclosure actions arising from loan defaults that can be attributed to their military service and that pertain to obligations or liabilities entered into before the start of their military service. See section 33.7 below. Texas has extended all of the SCRA’s provisions to state servicemembers who are called to active duty by the governor.
The SCRA operates by suspending the enforcement of pre-enlistment liabilities against a servicemember and the servicemember’s dependents while the servicemember is on active duty. It does not extinguish or discharge the servicemember-borrower’s debt but merely temporarily defers the creditor’s collection rights in order to ease the financial burdens of active duty servicemembers. Specifically, the Act intends—
(1) to provide for, strengthen, and expedite the national defense through protection extended by this Act to servicemembers of the United States to enable such persons to devote their entire energy to the defense needs of the Nation; and
(2) to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service.
The SCRA is unique in that it offers debtors anticipatory relief without requiring them to file, and often sparing them from, bankruptcy. The Act is frequently amended to accommodate the changing needs of servicemembers. This chapter provides an overview of the SCRA and its most significant provisions as they relate to foreclosure proceedings.
The best source available for attorneys dealing with the SCRA’s protections is www.justice.gov/servicemembers/servicemembers-civil-relief-act-scra. This website collects recent decisions in this area and sets out the Department of Justice’s interpretations of the SCRA’s application. The Department of Justice takes a dim view of creditors attempting to limit the SCRA’s protections through waivers or other mechanisms. While the Act may appear to strike a balance between creditor and servicemember rights, the Supreme Court has stressed that any ambiguity should be read to the benefit of the servicemember, and the Department of Justice interprets and applies the SCRA protections within that context.
The protective provisions of the SCRA apply to servicemembers who are—
1.active-duty members in all of the uniformed military services (Army, Navy, Air Force, Marine Corps, and Coast Guard);
2.National Guardsmen called to active duty for more than thirty consecutive days by the President or the secretary of defense in order to respond to a national emergency declared by the President and supported by federal funds; and
3.commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration.
See 50 U.S.C. § 3911(1), (2).
§ 33.2:1“Military Service” and “Active Duty”
The Act uses “military service” contingently with “active duty” to indicate the period for which the servicemember is covered. Under the SCRA, “active duty” is defined as—
full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
50 U.S.C. § 3911(2)(A)(i); 10 U.S.C. § 101(d)(1).
Texas has extended all of the SCRA’s provisions to state servicemembers who are called to active duty by the governor. Additionally, any period for which a servicemember is absent from duty on account of sickness, wounds, leave, or other lawful cause is considered to be “military service” for the purposes of the SCRA. 50 U.S.C. § 3911(2)(C).
The Act also extends rights to members of reserve components ordered to report for military service and individuals ordered to report for induction under the Military Selective Service Act. 50 U.S.C. § 3917. Reservists and new inductees are covered from the receipt of their orders until they report for military service or induction, or the order is revoked. The SCRA even goes as far as to extend protections to citizens of the United States who serve in the armed forces of ally-nations and whose service is against a common enemy, until they are discharged from service. 50 U.S.C. § 3914.
§ 33.2:2Protection for Dependents
Additionally, the SCRA provides coverage for the dependents of servicemembers. Dependents include the servicemember’s spouse, child, and individuals for whom the servicemember provides over half of their support for the 180 days immediately preceding an application for relief. 50 U.S.C. § 3911(4). A dependent would be entitled to SCRA protections upon application to a court if their ability to comply with a lease, contract, bailment, or other obligation is materially affected by the servicemember’s military service. 50 U.S.C. § 3959.
For obligations covered by the SCRA, the Act forbids foreclosure actions against servicemember-borrowers on active duty and even up to one year after their return from duty. See 50 U.S.C. § 3953(c). A person who knowingly makes or causes to make a prohibited sale, foreclosure, or seizure of property during this period commits a federal misdemeanor. 50 U.S.C. § 3953(d). To maintain SCRA compliance, it is important to first determine and then verify the military status of all borrowers. One way to show due diligence is to obtain a certificate of service or nonservice through the Defense Manpower Data Center (DMDC) SCRA website at https://scra.dmdc.osd.mil/scra/#/home, which verifies the current active military status of an individual free of charge. The certificate, which is a record authenticating the military status of an individual in furtherance of the SCRA, can also be acquired through the individual military branches by sending correspondence directly to the points of contact for the individual services.
It is important to determine when a servicemember’s protection ends under the SCRA. Typically, the SCRA’s coverage terminates when the servicemember is released from military service or dies while in service. The DMDC website provides the servicemember’s last date of active duty military service by accessing https://scra.dmdc.osd.mil/scra/#/single-record. However, some specific sections of the SCRA modify the term for which a servicemember is covered by the specific protection granted. For example, servicemembers are protected from mortgage foreclosures during, and up to one year after, their active duty military service. See 50 U.S.C. § 3953.
It is essential to review the applicable section to definitively determine how long a servicemember is covered.
The SCRA is applicable in all states and territories of the United States, including any courts, administrative agencies, or political subdivisions thereof. 50 U.S.C. § 3912. Essentially, the Act is applicable to any proceedings commenced in any geographical area in which the United States has jurisdiction. The Act, however, only applies to civil and administrative proceedings, not to any criminal proceedings against the servicemember. Additionally, despite having federal jurisdiction, the Act does not automatically present a federal question that must be decided by federal courts. See generally Administrative & Civil Law Department of the Judge Advocate General’s Legal Center & School, U.S. Army, The Servicemembers Civil Relief Act Guide § 2-6 (JA 260, 2006).
Designed to benefit servicemember-debtors, SCRA seeks only to equitably account for the undue burden and material effect that military service has on their ability to meet obligations entered into before active duty. Section 4011 of the SCRA is designed to emphasize the equitable nature of the Act and its intent to promote fairness for servicemembers, not abuse of creditors. Specifically, this section prevents the transfer of a property to a servicemember with the purpose of incurring SCRA protections against creditor obligations. See 50 U.S.C. § 4011.
Additionally, the SCRA does not eliminate a debtor’s obligation to its creditors; it merely attempts to defer the obligation until the servicemember’s ability to repay the obligation is no longer materially affected by his military service. See 50 U.S.C. § 3953(b). A creditor may seek relief from several SCRA provisions, including the 6 percent interest rate cap provided in section 3991, by showing a court that the servicemember’s military status does not materially affect his ability to meet the obligation.
Various sections of the SCRA include statutes of limitation that limit a servicemember’s ability to evoke the protections and benefits granted under that particular section after a certain period. (The limitations vary and are specific to particular sections/protections granted to the SCRA. Each section discussed below includes a discussion of its applicable limitations.) Other sections require servicemembers to give their creditors notice before the SCRA protections provided by that particular section can apply. Courts are also instructed by the Act, especially when granting a stay of proceedings, to evoke relief equitably to all the parties involved. Essentially, the SCRA attempts to equalize the playing field so that servicemembers are not unduly disadvantaged by the commitment they made to serve their country.
Many of the SCRA’s provisions require that a servicemember’s relevant rights or legal standing be materially affected by his military service. However, this does not mean that a servicemember is required to show that his active duty status affects his ability to pay a creditor.
In a frequently cited opinion, the Supreme Court noted that, instead, the SCRA is “always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” Boone v. Lightner, 319 U.S. 561, 575 (1943). The court cautioned, however, that discretion is specifically vested in the judicial system to ensure that the relief provided in the Act is not abused or overextended beyond protecting servicemembers unable to manage their affairs because of their military service. By requiring a showing of material effect, the Act bars protection on bases where a servicemember is not prejudiced or disadvantaged by their military service. To satisfy the “materially affects” provision of the SCRA, a servicemember’s inability to comply with the terms of the obligations must be by reason of his commitment to military service.
In determining materiality, courts look to whether a servicemember’s ability to prosecute or defend a civil suit is impaired by the carrying out of his military duties. Essentially, courts form an opinion as to whether the individual’s military service affects his ability to meet the financial obligations and responsibilities he had incurred and assented to before entering active duty.
The SCRA does not specify who bears the burden of proving a material effect. Consequently, both parties should be prepared to demonstrate the existence or nonexistence of a material effect. Texas courts have found no evidence of prejudice by reason of military service where a servicemember defendant was sued and then failed to demonstrate how or why his military service materially affected his ability to respond to or defend the suit. In re K.B., 298 S.W.3d 691, 694 (Tex. App.—San Antonio 2009, no pet.); Winship v. Garguillo, 754 S.W.2d 360, 364 (Tex. App.—Waco 1988), writ denied per curiam, 761 S.W.2d 301 (Tex. 1988). Generally, courts expect to be provided with a servicemember’s financial information before and during military service so that they may evaluate the financial constraints military service places on the servicemember-debtor.
For further treatment on how courts interpret the SCRA, see Mark E. Sullivan, A Judge’s Guide to the Servicemembers Civil Relief Act, available at www.nclamp.gov/media/425665/jdg-guide.pdf.
§ 33.7Mortgage Foreclosures—Section 3953
Section 3953 of the SCRA expressly grants protections to servicemembers against mortgage foreclosures of obligations governed by the Act. See 50 U.S.C. § 3953. This section applies to only obligations on real or personal property owned by the servicemember that are secured by a mortgage, trust deed, or other security interest that originated before the period of military service. 50 U.S.C. § 3953(a).
To be covered by section 3953, the servicemember, or his dependents, must have owned the property, and the obligations against the property must have been incurred before the commencement of the servicemember’s military service. 50 U.S.C. § 3953(a)(1). Additionally, the servicemember must still own the property, with the obligations still in existence against the property, at the time the benefits and protections of the SCRA are sought.
Specifically, the SCRA insulates servicemembers from any action filed during, or even within one year after, their active duty military service seeking to enforce the obligations described above against them. The Act explicitly invalidates any sale, foreclosure, or seizure of property resulting from the breach of these obligations if such action is taken during, or within one year after, the period of the servicemember’s military service. 50 U.S.C. § 3953(c). Persons who knowingly conduct or attempt to conduct a foreclosure in violation of section 3953(c) may be fined and imprisoned for up to one year. 50 U.S.C. § 3953(d). However, such actions will be allowed and considered valid via court order or if expressly agreed as provided by a section 3918 waiver of rights agreement. See 50 U.S.C. § 3953(c). For additional discussion, see section 33.8 below.
§ 33.7:2Court Stay of Enforcement
The Act authorizes courts to stay proceedings for any period required by justice and equity and to adjust the obligation in order to preserve the interests of all the parties. A court may take such action on its own motion after a hearing, and is obligated to take such action at the request of a servicemember, when it finds a servicemember’s ability to comply with the obligation is materially affected by military service. See 50 U.S.C. § 3953(b).
§ 33.8Waiver of SCRA Rights—Section 3918
To forgo protections and benefits under the SCRA, a servicemember must expressly waive his SCRA rights in writing. See 50 U.S.C. § 3918. The written waiver must be executed as an instrument entirely separate from the applicable obligation or liability. Engstrom v. First National Bank of Eagle Lake, 47 F.3d 1459, 1463 (5th Cir. 1995).
Rights requiring a waiver in writing include the modification, termination, or cancellation of an obligation secured by a mortgage, trust, deed, lien, or any other similar security interest, and the repossession, retention, foreclosure, sale, forfeiture, or taking possession of property that is security for any obligation. See 50 U.S.C. § 3918(b). Waiver of these rights will be effective only if it was made in a written agreement executed during or after the servicemember’s period of military service. See 50 U.S.C. § 3918(a).Waivers prior to military service are ineffective.
§ 33.9Stay of Proceedings—Section 3932
Section 3932 of the SCRA allows a court to stay civil actions or proceedings for a period of not less than ninety days. See 50 U.S.C. § 3932(b)(1). The court may issue the stay on its own motion and is required to issue the stay upon application by the servicemember. 50 U.S.C. § 3932(b)(1). The Act authorizes a stay at any stage before a final judgment against the servicemember as long as the servicemember has successfully received notice of the action while in military service or within ninety days after the termination or release from service. 50 U.S.C. § 3932(a). If a servicemember did not receive any notice, however, section 3931 on default judgments, discussed in section 33.10 below, would apply in lieu of section 3932.
Pursuant to section 3932, a servicemember’s application for a stay must (1) state the manner in which current military duty requirements materially affect his ability to appear before the court and (2) provide a date when the servicemember will be available to appear. 50 U.S.C. § 3932(b)(2)(A). Recently, a Texas court of appeals found that there is no requirement under this section for a servicemember to specifically show that military service affects his ability to prosecute or defend an action. In re H.S.J., No. 03-10-00007-CV, 2010 WL 4670564, at *3 n.4 (Tex. App.—Austin Nov. 16, 2010, no pet.) (mem. op.) (citing former 50 U.S.C. app. § 522(b), now 50 U.S.C. § 3932(b)).
Additionally, a servicemember’s request must include a statement from his commanding officer, stating that the servicemember’s current military responsibilities prevent an appearance in court and that no military leave is authorized at that time. 50 U.S.C. § 3932(b). A request for a stay under this section will not constitute an appearance for jurisdictional purposes or a waiver of any defenses. 50 U.S.C. § 3932(c).
If a servicemember is granted a stay under this section, he may apply for an additional stay based upon a continuing material effect military service has on the ability to appear. This application for an additional stay may be made concurrently with a servicemember’s initial application for stay or when it appears that the servicemember is unavailable to prosecute or defend civil actions or proceedings. To request an additional stay, the servicemember must provide the same documents attesting to the material effect of his duties that were required in the initial application for stay. 50 U.S.C. § 3932(d)(1).
A court has discretion to refuse a grant of an additional stay of proceedings, even at the request of the servicemember. If, however, a court refuses an additional stay, it must then appoint counsel to represent the servicemember in the action or proceeding. 50 U.S.C. § 3932(d)(2).
The protections provided under this section do not apply to evictions and distress, which are covered by section 3951 of the SCRA. See 50 U.S.C. § 3932(f). Additionally, if a servicemember applies for a stay of proceedings under this section and is ultimately unsuccessful, then the servicemember is barred from seeking the protection against default judgments provided under section 3931. See 50 U.S.C. § 3932(e).
§ 33.10Default Judgments—Section 3931
Section 3931 of the SCRA protects servicemembers from default judgments against them if they fail to make an appearance in any civil action or proceeding. 50 U.S.C. § 3931(a). Essentially, it provides that before a court is able to enter a default judgment against a servicemember, it must first require that the plaintiff-creditor file an affidavit stating whether the defendant is in military service and provide necessary supporting facts. 50 U.S.C. § 3931(b)(1)(A). If the plaintiff is unable to make such a determination, then the plaintiff is required to file an affidavit stating that they were unable to determine whether or not the defendant is in military service. 50 U.S.C. § 3931(b)(1)(B).
The affidavit required may be satisfied by a statement, declaration, verification, or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury. 50 U.S.C. § 3931(b)(4). Anyone who makes or uses such an affidavit knowing it to be false will be subject to fines under title 18 of the United States Code, or imprisoned for not more than one year, or both. 50 U.S.C. § 3931(c).
If the court cannot determine based on the affidavits filed whether the defendant is in military service, before entering judgment, it may require the plaintiff to file a bond. The bond would be available to indemnify the defendant against any loss or damage resulting from any judgment in favor of the plaintiff if the defendant is later found to be in military service and the judgment is subsequently set aside in whole or in part. The bond would remain in effect until the applicable time for appeal and setting aside of a judgment has expired. See 50 U.S.C. § 3931(b)(3).
If it appears that, in fact, the defendant is in military service, the court is required to appoint an attorney to represent the defendant before it can enter a judgment. If the appointed attorney is unable to locate the servicemember, then actions by the attorney in the proceedings will not waive any defense of, or otherwise bind, the servicemember. See 50 U.S.C. § 3931(b)(2).
If the court determines that there may be a defense to the action that cannot be presented without the presence of a defendant in military service, or if, after due diligence, defendant’s counsel has been unable to contact the defendant or determine whether a meritorious defense exists, the court must grant a stay of proceedings for a minimum of ninety days. The stay may be granted on the request of defendant’s counsel or on the court’s own motion. See 50 U.S.C. § 3931(d).
A stay of proceedings under these circumstances is different from, and thus not controlled by, the procedures or requirements required under section 3932, which provide a stay with the successful receipt of notice. See 50 U.S.C. §§ 3931(e); 3932. If, however, a servicemember has indeed successfully received notice of the action while in military service or within ninety days after the termination or release from service, then the servicemember may request a stay of proceeding under section 3932 of the SCRA. See 50 U.S.C. §§ 3931(f); 3932.
If a default judgment is entered against a servicemember-defendant during the servicemember’s period of military service or within sixty days after the termination of or release from service, there are provisions for setting aside the default judgment. If the servicemember can show that a meritorious or legal defense to the action or some part of the action was materially affected by military service, then the court entering the judgment must, upon application by or on behalf of the servicemember, reopen the judgment. See 50 U.S.C. § 3931(g)(1).
Texas courts have found that the wording of this section clearly indicates that a servicemember must show more than mere active military duty in order to be entitled to the reopening of a judgment. In re K.B., 298 S.W.3d 691, 694 (Tex. App.—San Antonio 2009, no pet.) (citing former 50 U.S.C. app. § 521(g)(1)(A), (g)(1)(B), now 50 U.S.C. § 3931(g)(1)(A), (g)(1)(B)). The purpose of reopening a judgment under these circumstances is to preclude a servicemember’s military service from interfering with his ability to defend any civil action or proceeding against him.
The SCRA requires that any application to vacate or set aside a judgment be filed no later than ninety days after the servicemember’s termination or release from military service. 50 U.S.C. § 3931(g)(2). Even if the court vacates, sets aside, or reverses a default judgment against a servicemember under these provisions, however, any actions taken under this section will not impair any right or title acquired by a bona fide purchaser for value under the default judgment. 50 U.S.C. § 3931(h).
§ 33.11Other Relevant SCRA Provisions
§ 33.11:1Notification of Benefits
Section 3915 provides that the secretary concerned with a particular branch of the armed services is responsible for ensuring that notice of SCRA benefits and protections is provided to all persons in or entering into military service. 50 U.S.C. § 3915.
§ 33.11:2SCRA Protection Not to Affect Certain Future Financial Transactions
Section 3919 insulates servicemembers from creditor discrimination by prohibiting the exercise of any rights under the SCRA from affecting certain future financial transactions. See 50 U.S.C. § 3919.
§ 33.11:3Fines and Penalties under Contracts
Section 3933 provides that when an action to enforce the terms of a contract is stayed by a court under the SCRA, no penalty or fine shall be imposed for failure to comply with the contract during the stay period. 50 U.S.C. § 3933(a). A court may even go so far as to reduce or waive any fine or penalty incurred if the servicemember was in military service when it was incurred and the ability to perform the obligation imposed by such contract was materially affected by his service. 50 U.S.C. § 3933(b).
§ 33.11:4Statute of Limitations
Section 3936 of the SCRA tolls statutes of limitation. It provides that the period of a servicemember’s military service cannot be included in computing any time period for the bringing of any action or proceeding in a court, or for the redemption of real property sold or forfeited to enforce an obligation, by or against the servicemember, their heirs, executors, administrators, or assignees. See 50 U.S.C. § 3936.
§ 33.11:5Protection under Installment Contracts for Purchase or Lease
Section 3952 grants protections under installment contracts for purchases or leases of real and personal property. If a servicemember has already entered military service, any contract by him for the purchase, lease, or bailment of property cannot be rescinded or terminated for a breach occurring before or during the servicemember’s military service without a court order. Nor may the property, under these same terms, be repossessed. However, this section applies only to contracts for which a deposit or installment has been paid by the servicemember before entering military service. See 50 U.S.C. § 3952(a).
Additionally, if a hearing is conducted based on the protections granted in this section, the court may (1) order repayment to the servicemember as a condition of terminating the contract and resuming possession of the property, (2) stay the proceedings on its own motion or as required by the request of the servicemember, or (3) make any other equitable disposition to preserve the interests of the parties. See 50 U.S.C. § 3952(c). Anyone who knowingly resumes or attempts to resume possession of property in violation of section 3952 or 3918 (waiver of rights pursuant to a written agreement) may be fined and imprisoned for up to one year. See 50 U.S.C. § 3952(b).
§ 33.11:6Enforcement of Storage Liens
Section 3958 of the SCRA addresses the enforcement of storage liens. This section provides that any person holding a lien on property of a servicemember may not foreclose or enforce the lien during the servicemember’s period of military service and for a period of ninety days thereafter, unless the lienholder has a court order granted prior to enforcement. See 50 U.S.C. § 3958(a). If the servicemember’s ability to comply with the obligation is materially affected by military service, the court in a proceeding to foreclose or enforce a lien may, on its own motion, stay the proceeding or adjust the obligation to preserve the interests of all parties. See 50 U.S.C. § 3958(b). The court is required to take such action if requested by the servicemember. See 50 U.S.C. § 3958(b). A creditor who knowingly takes or attempts to take any action contrary to this section may be fined and imprisoned for up to one year. See 50 U.S.C. § 3958(c). The federal remedies are in addition to any other available remedy of the servicemember, such as wrongful conversion, specifically including consequential and punitive damages. See 50 U.S.C. § 3958(c).
§ 33.11:7Taxes Respecting Personal Property, Money, Credits, and Real Property
Section 3991 covers taxes respecting personal property, money, credits, and real property. This section applies to a tax, other than on personal income, which falls due and remains unpaid before or during the servicemember’s period of military service. It applies to a servicemember’s personal or real property occupied for dwelling, professional, business, or agricultural purposes by the servicemember or his dependents or employees. See 50 U.S.C. § 3991(a).
Under this section, such property may not be sold in order to enforce the collection of a tax or assessment unless by court order and upon the court’s determination that the military service did not materially affect the servicemember’s ability to pay. Under these circumstances, a court may also choose to stay a proceeding to enforce the collection of the tax or assessment, or sale of the property, during the servicemember’s period of military services but for no more than 180 days following the end of such military service. See 50 U.S.C. § 3991(b).
If the property is sold or forfeited to enforce the collection of a tax or assessment, the servicemember has the right to redeem or commence an action to redeem the property while in military service or within a 180-day window after the end of military service. This section, however, may not be construed to shorten any period for redemption provided by state law. See 50 U.S.C. § 3991(c). In Texas, the period of redemption is generally two years. See Tex. Tax Code § 34.21.
Additionally, any unpaid tax or assessment due will bear interest at 6 percent annually until paid. Under this subsection, no additional penalty or interest may be incurred for nonpayment. See 50 U.S.C. § 3991(d). Moreover, a creditor is expected to forgive interest in excess of this rate and reduce payments during the period of military service plus one year by the amount of interest forgiven. The reductions apply from the date the servicemember entered active duty, rather than the date notice was received.
§ 33.12Texas Legislation Protecting Servicemembers
Section 51.002 of the Texas Property Code contains additional protections for servicemembers in providing notice of sale or default. The written notice of sale and of default served on a debtor must not only state the name and address of the notice sender, but also contain a statement, printed in bold-faced or underlined type, substantially similar to the following:
Assert and protect your rights as a member of the armed forces of the United States. If you are or your spouse is serving on active military duty, including active military duty as a member of the Texas National Guard or the National Guard of another state or as a member of a reserve component of the armed forces of the United States, please send written notice of the active duty military service to the sender of this notice immediately.
The Texas Property Code, like section 3953 of the SCRA, specifically addresses the foreclosure of properties owned by active duty military members. Section 51.015 of the Texas Property Code protects the dwellings owned by servicemembers from obligations secured by a deed of trust or other contract lien, including a lien securing payment of an assessment, originating before the servicemember’s active duty. See Tex. Prop. Code § 51.015. “Dwelling” is defined as a residential structure or manufactured home that contains one to four family housing units. See Tex. Prop. Code § 51.015(a)(2).
Specifically, section 51.015 prohibits a sale, foreclosure, or seizure of property under the obligation during the servicemember’s period of active duty or during the nine months after the conclusion of such active duty. See Tex. Prop. Code § 51.015(d). Under the Property Code, a foreclosure sale may still be conducted by court order, if issued before the sale, and via a waiver agreement signed by the servicemember during or after his period of active duty. See Tex. Prop. Code § 51.015(d), (e).
The Property Code gives servicemembers the right to either stay foreclosure proceedings or adjust their obligations under the contract. See Tex. Prop. Code § 51.015(c). It does not release servicemembers from all mortgage and contractual obligations, but it does give them an opportunity to fulfill their obligations on a timeline better suited to their particular situation.
The Property Code even provides these same protections for a servicemember’s dependents if their ability to comply with the obligation is materially affected by the servicemember’s military service. See Tex. Prop. Code § 51.015(g). Additionally, a court has the discretion to extend any action it takes to a surety, grantor, endorser, accommodation maker, comaker, or any other person who might be primarily or secondarily subject to the obligation. See Tex. Prop. Code § 51.015(h). Violating the rights of the servicemember or the other persons protected under these provisions is a class A misdemeanor. See Tex. Prop. Code § 51.015(f).
Administrative & Civil Law Department of the Judge Advocate General’s Legal Center & School, U.S. Army. The Servicemembers Civil Relief Act Guide (2006).
Sullivan, Mark E. A Judge’s Guide to the Servicemember Civil Relief Act, available at www.nclamp.gov/media/425665/jdg-guide.pdf.