A Message From The Chair...

I am pleased to report substantial progress in the efforts of the Standing Committee on Legal Assistance for Military Personnel (LAMP) to encourage enhanced enforcement powers for the Servicemembers Civil Relief Act (SCRA) (50 U.S.C. App. §§ 501-596). On February 16, 2009, at the ABA Midyear meeting, the ABA House of Delegates unanimously adopted Resolution No.114, as proposed by the LAMP Committee.

The SCRA is the great statutory repository of substantive and procedural protections for servicemembers and their dependents, designed to ensure that creditors, landlords and litigants do not take unfair advantage of individuals who are away serving their country. The new ABA policy embodied in Resolution 114 brings the full support and persuasive power of the ABA to bear in urging Congress to amend the SCRA “to authorize the Attorney General of the United States to commence a civil action in any United States District Court when the Attorney General has reasonable cause to believe that a violation of the SCRA has occurred, on a matter of general public interest.” The new policy further urges that such amendment “(i) clarify that a private right of action exists under the SCRA, pursuant to which servicemembers or covered dependents may bring civil suits, independently or in conjunction with Department of Justice enforcement actions, for damages or injunctive relief arising from violations of the SCRA, and (ii) provide that a prevailing plaintiff in such an action may recover reasonable attorney’s fees.”

Neither the SCRA as originally enacted in 2003 (replacing the venerable but outdated Soldiers and Sailors Civil Relief Act) nor the amendments to the Act in 2004 and 2008 explicitly spelled out what should have seemed obvious—that the essential servicemember protections codified in the Act are subject to enforcement by court action. Now, Congress should take its cue from the ABA House of Delegates and move quickly to strengthen the Act by making manifest the right of both the Department of Justice (DOJ) and individual servicemembers to enforce their rights under the Act. Among other things, those protections require creditors to obtain court orders before taking adverse actions such as evictions, repossession of automobiles or other property, foreclosure on mortgages, termination of leases, termination or suspension of cell phone contracts, and enforcement of storage liens against covered servicemembers.

The new ABA policy restates two simple propositions that should be self-evident: That the SCRA’s vital protections of our servicemembers can only be as strong as the opportunity to enforce them in court, and that there is no reasonable basis for disallowing public and private enforcement of its servicemember protections.

Indeed, for years the majority of federal courts have taken it as a given that an implied private right of action was part of the SCRA.¹

But LAMP and the ABA were spurred to action by a recent case in Michigan where a federal court dismissed a servicemember’s suit brought under the SCRA, holding that no private cause of action exists to enforce the SCRA.

In this case, Sgt. James Hurley was mobilized and deployed to Iraq. His mortgage company was so notified, but allegedly proceeded to ignore his demand for an interest rate reduction pursuant to 50 U.S.C. App. section 527; the company allegedly caused a non-judicial mortgage foreclosure to be executed on his property in violation of 50 U.S.C. App. section 533; and subsequently initiated eviction proceedings against Hurley’s family and sold his property.² Fortunately, in an interesting and unusual action, on March 13, 2009, Judge Quist, on a motion to reconsider, reversed and vacated his previous decision, holding, inter alia, that the SCRA does contain an implied enforcement right and that Hurley was entitled to summary judgment on his wrongful foreclosure claim.

The Hurley reversal should not induce complacency, however, because as that case illustrates, counting on continued court recognition of an implied right of action going forward is an unsound strategy in a cause as important as preservation of SCRA enforcement. There is a not insignificant risk that, absent congressional action to cement enforcement powers, a federal appeals court or the Supreme Court could hold (as the Supreme Court has recently held in federal securities cases and other areas) that no private enforcement right is implicit in the SCRA.

LAMP and the ABA are not suggesting, and the ABA policy statement does not state or imply, that Congress must act because as currently written the SCRA does not support private or public enforcement. On the contrary, the ABA is asking Congress to clarify that these enforcement powers are essential elements of the statute, and have been all along. That said, contingency planning should always be part of sound military and legal strategy.

Endnotes
¹ See, e.g., Marin v. Citibank, N.A., Inc., 2000 U.S. App. LEXIS 3789 (2nd Cir. 2000); Engstrom v. First National Bank of Eagle Lake, 47 F. 3d 1459 (5th Cir. 1995); Marin v. Anderson, 1998 WL 1765716 (N.D. Tex 1998).
² See Hurley v. Deutsche Bank Trust Company Americans, 2008 WL 4937906 (W.D. Mich. (11/14/2008) and 2008 WL 4539478 (W.D. Mich. 9/30/2008).

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