CLE LUNCH & LEARN SERIES September-December 2022

DBA CLEDBA CLEDBA CLE

Join us on Mondays at 11:30am this Fall & Winter for a Quick 1-1.5 Hr CLE!

Boxed lunches available for purchase or feel free to bring your own! Place your lunch order when registering.

S E P T E M B E R N O V E M B E R

9/12 Preparing A Case for Trial

Client Case Evaluations and Setting Expectations 1.5 Gen Hrs or 1.5 NLT Hrs

9/19 The "Write" Stuff

Effective Writing from the Staff Attorney ' s Desk 1.5 Gen Hrs or 1.5 NLT Hrs

9/26 Business Immigration 101

1.0 Gen Hrs or 1.0 NLT Hrs

O C T O B E R

10/10 Preparing A Case for Trial

How to Persuade a Jury from Beginning to End: Tell Your Story in Voir Dire, Opening and Closing 1.5 Gen Hrs or 1.5 NLT Hrs

10/17 Introduction to Insurance Recovery

1.0 Gen Hr

10/24 GAL Report Writing for A/N/D Cases

1.0 Gen Hr

11/07 Business Law 101

Entity Formation and Governance for the Business Practitioner 1.5 Gen Hrs or 1.5 NLT Hrs

11/14 It's Not a "Get Out of Jail Free" Card: Navigating Ohio's Medical Marijuana Laws

1.5 Gen Hrs

11/21 Ran-Some, Lose-Some

Preparing for and Surviving Against Ransomware Attacks 1.0 Gen Hr

11/28 Preparing A Case for Trial

Discovery - Evolving with Technology and the Civil Rules 1.5 Gen Hrs or 1.5 NLT Hrs

D E C E M B E R

12/05 Business Law 101

Contracts and Employment Law for the Business Practitioner 1.5 Gen Hrs or 1.5 NLT Hrs

12/12 Preparing A Case for Trial

Evaluating Evidence for Purposes of Trial 1.5 Gen Hrs or 1.5 NLT Hrs

12/19 Secondary Trauma, Burnout, and Self-Care for Lawyers

1.5 Professional Conduct Hrs

From the Judge's Desk:

Take Note of Special Protections for Servicemembers

Before entering private practice in 2001, I was a military attorney and the protections of what was formerly called the Soldiers & Sailors Civil Relief Act were useful when representing Airmen facing legal issues. Using the provisions of the Act our office often obtained relief from counterparties who had ignored the Act’s protections. Congress passed the law in 1940 and comprehensively overhauled it in 2003, expanding the law’s protections and changing its name to the Servicemember’s Civil Relief Act (“SCRA”). In a community such as Dayton with a major military installation nearby there is a good chance that eventually a tenant your client hires you to evict or a defendant you pursue other claims against will turn out to be on Active Duty, or perhaps in the National Guard or Reserve, which are also covered under certain conditions. It behooves any litigator think about the Act before charging into action. Conversely, if you are retained by a servicemember or his (or her) family, you have some extra tools in your litigation kit.

The marquee aspect of the law and its predecessor versions is the rule that no Default Judgment can be granted against a servicemember who fails to make an appearance, without first appointing an attorney to represent him. Most litigators understand that this rule applies to all civil court proceedings, but when Congress revised the law in 2003 it expanded this rule to cover all administrative agencies of the United States, of a state or within a state. 50 U.S.C. §3912 this makes the law applicable right down to local proceedings, such as a county housing agency or zoning board contemplating whether a servicemember’s house is complaint with regulations. Unlike many other protections afforded by the SCRA that a servicemember must actively assert, the restraint on default judgments requires no action by the servicemember; rather the burden is on the Plaintiff, who must file an affidavit stating whether a defendant is in military service or not, or stating whether the fact cannot be ascertained after a good faith effort to determine that status. There is really no excuse for ignorance these days as military status can usually be verified using one of several online services.

Even after a servicemember makes an appearance (perhaps through counsel), the SCRA often will compel the stay of civil, judicial and administrative proceedings for 90 days. The stay is mandatory upon the servicemember’s request, subject only to a showing that his or her ability to appear is materially affected by their job requirements and stating a date when they can appear. Often this takes the form or a letter from the servicemember attaching a copy of his Orders, or a letter from a commanding officer. With the advent of remote hearings such as Zoom, it will become harder for servicemembers to assert that they are unavailable, assuming that reasonable accommodations are offered by a court or agency. Even after an attorney is appointed and assuming a matter progresses to a judgment or adverse decision, a servicemember can apply for relief from judgment within 90 days after the end of military service.

The SCRA includes multiple sections that affect preexisting contracts, some of which serve as a shield for the servicemember and others that function as a sword. Servicemembers can apply for temporary relief from almost all contractual obligations; this is narrow relief in that it only defers the obligation until 180 days after the termination of military service, it does not cancel debts. However, it is not limited to deployed personnel, but rather is available to anybody in military service. In 2021, Congress amended the Act to allow servicemembers to terminate internet, phone and cable contracts if they are on orders lasting 90 days (50 U.S.C. §3956(a)). Even before the congressional action Ohio had passed similar protections, allowing cell phone contracts to be cancelled without penalty upon a deployment (R.C. §1349.03). Living arrangements and the necessity to change them rapidly are given special attention by the Act; servicemembers are allowed to terminate their leases not only upon receipt of

By The Honorable Robert G. Hanseman Montgomery County Common Pleas Court robert.hanseman@montcourt.oh.gov

military orders, but also upon initial entry into military service, per 50 U.S.C. §3955. Landlords should take note that the obligations of any dependent who may have cosigned a lease are terminated as well. Once notice is given, the lease will terminate 30 days after the next rent payment is due. If a servicemember lessee dies while in military service, the spouse of a lessee may terminate the lease within one year of the death. Additionally, non-judicial foreclosures are generally prohibited against servicemembers not only during their period of service, but for one year following the end of their service and when considering whether to grant such an order, the court may stay the proceedings for as long as justice requires or “adjust the obligations” of the parties. Failure to obtain a court order prior to a foreclosure is a strict liability offense, but if the creditor has actual knowledge of the debtor’s military status, a fine or imprisonment is authorized.

Conversely, Lenders are prohibited from rescinding or terminating a contract for the installment purchase or lease of real property without seeking a court order. The protection attaches once the service member makes a deposit or a first payment on the obligation, per 50 U.S.C. §3952. The same rule applies to personal property including motor vehicles with an added ban on repossessions without prior judicial involvement.

Another striking feature of the SCRA is that it bars periods of military service from inclusion in computing statute of limitations period, both on behalf of or against the Servicemember. While the SCRA does not contain a time requirement for the servicemember to exercise their rights, some courts have imposed a limit. For example, the US Court of Appeals for the 9th Circuit has held that the four-year federal catchall statute of limitations located at 28 U.S.C. §1658 applies. McGreevey v. PHH Mortgage Corporation, 897 F.3d 1037 (9th Cir., 2018). In McGreevey, a Marine asked to have his loan refinanced after a period of active duty; his mortgage company ignored his request and foreclosed on his home; he probably had a good case, but he waited six years after the foreclosure sale to bring suit – which turned out to be too long. However, the protections of the Act can be enforced not only via private cause of action, but also Attorneys General, who are authorized to file a federal lawsuit against any person or entity who engages in a pattern or practice of violating the law, 50 U.S.C. §4041(a)(1). Though Mr. McGreeyey’s private litigation was time-barred, he had the last laugh as his case caught the attention of the U.S. Attorney’s office in Seattle, which opened an investigation into the loan servicing company and ultimately forced the company to pay $125,000 to Mr. McGreevey and the same amount to five other servicemembers who had been foreclosed on.

This article only scratches the surface of the many protections offered by the Servicemember’s Civil Relief Act. As with any modern statute, there are a host of technical requirements that are beyond the scope of this article. A careful litigator will consult the statute directly as well as review the relevant case law.

R.L. EMMONS AND ASSOCIATES, INC.

842–A E. Franklin Street Dayton, Ohio 45459

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