Judicial foreclosures are completed through the state court system. The lender initiates the process by filing a complaint and having it served on the borrower and other defendants, along with a summons to appear in court. A "default judgment" occurs if you fail to respond to the suit, and the judge then rules against you in your absence. But the SCRA protects servicemembers against default judgments. So, even if you took out your mortgage after going on active duty, a court can't enter a default judgment against you while you're on active duty unless it follows a specific procedure described below.
A lender can complete a judicial foreclosure against an absent servicemember, but only under specific circumstances. Under the SCRA, a plaintiff the party that brings a lawsuit who seeks a judgment must inform the court if the servicemember is on active duty. If neither the servicemember—nor an attorney on his or her behalf—appears in the action, the court can't enter a judgment until after the court appoints an attorney to represent the servicemember.
But i f an attorney appointed to represent a servicemember can't locate the servicemember, the attorney's actions in the case won't waive any defense the servicemember has or otherwise bind the servicemember. Once a court appoints an attorney to represent the servicemember, that attorney will often seek a stay of proceedings a delay. If requested by the attorney or upon the court's own motion , a court will grant a stay of proceedings for a minimum of 90 days if:.
If the court enters a default judgment against you during your period of military service—or within 60 days after termination of or release from such military service—you might be able to reopen the case later. You must demonstrate that:. If a service member is having difficulty paying his or her mortgage, there are many options, such as loan modification changing the terms of the loan , forbearance short-term suspension of mortgage payments , refinancing, or a repayment plan.
Look for a future post on these options soon. Carol Church writes blog posts for the Personal Finance concentration area , focusing on financial topics of interest to service members and personal finance managers and educators working with service members. Church is the supervising writer and editor for Family Album, a University of Florida blog.
She has been working as a science writer and editor for more than ten years, and has received numerous awards and honors for her work. The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service. Please reference the Terms of Use and the Supplemental Terms for specific information related to your state.
Grow Your Legal Practice. Meet the Editors. SCRA Protections in Judicial Foreclosures Again, because the SCRA prohibits nonjudicial foreclosures in cases where the servicemember took out the mortgage before military service, the lender might choose to foreclose judicially. If requested by the attorney or upon the court's own motion , a court will grant a stay of proceedings for a minimum of 90 days if: there might be a defense and the defense can't be presented without the servicemember's presence or after due diligence, the servicemember's attorney hasn't been able to contact the servicemember or otherwise determine if a meritorious defense exists.
Default Judgments Can Be Reopened If a court enters a default judgment against you while you're on active duty or within 60 days after your active duty ends , you may ask the court to reopen the judgment. The court will reopen the judgment so you can defend yourself if it appears to the court that: your military service materially affected your ability to make a defense to the action, and you have a meritorious or legal defense to the foreclosure or some part of it.
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Foreclosure Laws. Results per page 25 50 A A A To annotate or highlight text, select it and click the icon that appears. Surviving Debt Chapters Chapter 18 Defending Your Home from Foreclosure Special Protections for Active Duty Military Special Protections for Active Duty Military If you are on active duty in the military or left within the past nine months, or you are the spouse or dependent of someone on active duty, you have special protections from foreclosure under the Servicemembers Civil Relief Act.
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