Section 201 (Servicemember does not make an appearance)
Section 201 of the SCRA applies to any civil court action, including administrative actions, in which the servicemember does not make an appearance either in person or by filing an entry of appearance or making a responsive pleading.
Appointment of Counsel and Transfer to District Court
If the NCP is a servicemember and does not make an appearance, the Court cannot enter a Default Order unless the Court appoints the servicemember an attorney. Since the Office of Administrative Hearings (OAH) has no authority to appoint counsel, CSS staff must transfer administrative actions to district court. In such instances, CSS staff must file a Motion to Transfer with OAH.
Once an action is transferred to district court, or if the action originated in district court, CSS staff files a Motion for Default Judgment with the district court and sets the motion for hearing.
The motion informs the Court that the servicemember has not made an appearance nor requested a stay and the Court cannot enter a default order without appointing the servicemember an attorney.
The Court may decline to appoint an attorney. If the Court does not appoint an attorney, CSS staff continues the court action until the servicemember enters into an Agreed Order, the Court appoints counsel, or the servicemember is released from military service. If an attorney is appointed and the attorney cannot locate the servicemember, actions by the attorney will not waive any defenses or bind the servicemember.
Stays
The servicemember is also afforded a mandatory stay in a default proceeding when an appearance is not made. The Court must stay the proceeding for at least 90 days if the servicemember’s counsel requests a stay or on the Court’s own motion. The stay will be granted by the Court “if the Court determines that: (1) there may be a defense to the action and a defense cannot be presented without the presence of the defendant; or (2) after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exits.” A stay under Section 201 is not controlled by the stay procedures under Section 202 of the Act when the servicemember makes an appearance.
Default Orders
After counsel is appointed and any stay has expired, CSS staff should proceed to obtain a default order. If it is unknown whether the Defendant is a servicemember, the Court can require a bond before entering a Default Order.
Before entering a Default Order, CSS staff must file a default affidavit with the court stating that counsel has been appointed and any stay has expired.
Upon application of the servicemember, the Court shall reopen a default judgment entered under this section against a servicemember during military service or within 60 days after release from military service to allow the servicemember to defend the action, if the court finds the servicemember was materially affected by reason of military service in making a defense and the servicemember has a meritorious defense. The servicemember must file the application not later than 90 days after release from military service.