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Finding Legal Help

You are not required to hire an attorney, but legal matters can be complicated. Consider talking to an attorney to go over your options. See the Finding Legal Help page for information about free and low cost ways to get legal help. 

Como encontrar ayuda legal

Usted no está obligado a contratar un abogado, pero los asuntos legales pueden ser complicados. Considere la posibilidad de hablar con un abogado para hablar de sus opciones. Para información sobre cómo obtener ayuda legal vea nuestra página Como encontrar ayuda legal.

Lawsuits Involving Military Service Members

This web page explains some of the rights and responsibilities of service members involved in civil litigation. For more information on the Servicemembers Civil Relief Act (50 U.S.C. section 3901 et seq.), see Related Information below.


Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act (SCRA) gives military servicemembers additional rights. This page focuses on procedural rights about defaults and stays.

A list of other significant protections under the SCRA is available on our page for volunteer attorneys who sometimes represent service members. The SCRA does not apply in criminal cases, including infractions.

See the Related Information section for more resources on this topic.

Default Judgment

Military service members have rights under the SCRA that protect them from a default judgment being entered. Also, if a default judgment has been entered without following the SCRA, the service member can ask that the judgment be set aside. See the Default Judgments web page for more information.

Procedure

Before the court can enter a default judgment in any civil case, the party starting the lawsuit and asking for the default must tell the court what they know about the defaulting party's military service status. Military service means:

  • active duty in the Army, Navy, Air Force, Marine Corps, or Coast Guard, or
  • called to active service in the reserves or National Guard, or
  • active service of a commissioned officer of the Public Health Service or National Oceanic and Atmospheric Administration.

50 U.S.C. 3911.

The party asking for the default must also explain the basis for their statement about the defaulting party's military status.

If the court is satisfied that the defaulting party is not in military service, the default judgment can proceed.

If the defaulting party is in military service, the court will vacate the default certificate, delay (stay) the case for 90 days and appoint a lawyer to represent the defaulting party. The lawyer will try to contact the defaulting party to determine their wishes.

  • If the lawyer cannot contact the service member, the default judgment can be entered once the stay expires or is lifted. A default judgment against service members can be vacated later.
  • If the lawyer is able to communicate with the service member, the service member can decide:
    • they want to waive their SCRA rights and consent to the judgment. The lawyer would file the necessary documents on behalf of the service member. The service member would no longer be in default, so the default certificate will be vacated, and a judgment by consent will be entered.
    • they want to fight the case and file an answer. The default certificate would be vacated, and the case would move forward.

If the party asking for the default does not know whether the defaulting party is in military service, the court can:

  • enter the default judgment and require plaintiff to post a bond to protect the defaulting party's rights or
  • enter the default judgment and waive the bond.

50 U.S.C. 3932.

If the defaulting party appears (for example, they file an answer), there is no default and the case can proceed even if the defaulting party is in military service.

Stays

A stay means the case is on hold. Nothing will happen in the case until the stay is lifted. A case could be stayed if the court determines the defaulting party is in military status.

A case could also be stayed whenever a service member in military status asks for a stay. The service member can ask for the stay at any point in the proceedings, even after judgment.

The stay must be for at least 90 days but could be for as long as military duty materially affects the service member's ability to appear in court. The service member must:

  • request the stay and provide a date when they will be able to appear; and
  • provide a letter from their commanding officer stating the service member's military duty prevents them from appearing and military leave is not authorized at the time of the letter.

The motion for a stay does not submit the service member to the personal jurisdiction of the court and does not waive any defense or right that the service member may have. 50 U.S.C. 3932.

If the judge decides that military service does not materially affect the ability to appear, the case can proceed even though the service member is on active duty. But the judge must appoint a lawyer for the service member if the service member does not have one.

The law does not define "materially affect." It does not necessarily require overseas deployment, but it does require facts that show the service member would be hindered in presenting their case.

The other party has the right to oppose a motion for a stay. The judge will decide whether military service materially affects the service member's ability to appear.

Legal Representative

A person can always represent themselves. Usually, if a person is represented by someone else, that other person must be a lawyer. A military service member can be represented by a lawyer or by someone with Power of Attorney. 50 U.S.C. section 3920.

Volunteer Lawyers

Several Utah lawyers have volunteered to be appointed by the court to provide limited legal help to service members facing a default judgment. The judges and staff of the Utah courts thank you for your service. The scope of representation includes trying to find and contact the service member, advising them of their option to ask for a stay or waive their rights, and filing the documents necessary to exercise the option chosen. For more information and to volunteer, see our webpage on Service Member Attorney Volunteers.

For more information and to volunteer, see our webpage on Service Member Attorney Volunteers.

Rights Under Utah Law

Service members also have rights under the Utah Service Members' Civil Relief Act (Utah Code Section 39-7-101 et seq.)

A service member can request expedited custody orders for their minor children if they are deployed. See the Motion for Temporary Order Due to Deployment web page for more information.

Forms


Forms to Ask for a Stay


Required forms for the moving party
  • Motion for Stay - PDF | Word
  • Letter Supporting Stay of Civil Case - PDF | Word
  • Request to Submit for Decision - PDF | Word
  • Findings of Fact, Conclusions of Law and Order on Motion for Stay - PDF | Word
Optional forms for the moving party
  • Reply Memorandum Supporting Motion - PDF | Word
  • Notice of Hearing - PDF | Word
  • Notice of Withdrawal of Counsel - PDF | Word

Forms to Oppose a Stay


Required forms for the opposing party
  • Memorandum Opposing Motion for Stay - PDF | Word
Optional forms for the opposing party
  • Request to Submit for Decision - PDF | Word
  • Notice of Hearing - PDF | Word
  • Findings of Fact, Conclusions of Law and Order on Motion for Stay - PDF | Word

Forms to Ask That the Stay be Vacated


Required forms for the moving party
  • Motion to Vacate Stay - PDF | Word
  • Letter Supporting Stay of Civil Case - PDF | Word
  • Request to Submit for Decision - PDF | Word
  • Findings of Fact, Conclusions of Law and Order on Motion to Vacate Stay - PDF | Word
Optional forms for the moving party
  • Reply Memorandum Supporting Motion - PDF | Word
  • Request to Submit for Decision - PDF | Word
  • Notice of Hearing - PDF | Word

Forms to Oppose Vacating the Stay


Required forms for the opposing party
  • Memorandum Opposing Motion to Vacate Stay - PDF | Word
Optional forms for the opposing party
  • Request to Submit for Decision - PDF | Word
  • Notice of Hearing - PDF | Word
  • Findings of Fact, Conclusions of Law and Order on Motion to Vacate Stay - PDF | Word

Forms to Waive Rights

Related Information

The Utah State Courts mission is to provide the people an open, fair, efficient, and independent system for the advancement of justice under the law.


Page Last Modified: 1/3/2020
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