The Military Affidavit in the Collection Process

certificate of nonmilitary servic

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Transcript:

Let’s first define the military affidavit. As you can see from the slide, the affidavit is a sworn statement proving the defendant is not an active service member. So why is that important? When a servicemember is active, the individual may be out of the country and may not have the ability to defend himself in litigation. Also, it’s worth mentioning that the document has various names, depending on the jurisdiction, such as certificate of nonmilitary service, nonmilitary affidavit or the Servicemembers Civil Relief Act affidavit, just to name a few.

Now, when does the certificate of nonmilitary service come into play? First, the defendant has to be an individual, and there’s money owed or some other adverse action that needs to be taken. This would include, but is not be limited to, filing suit in pursuit of judgment and the other issues that are mentioned on this slide as well.

What Must the Creditor Do?

Now the creditor has a few steps to take. First, the creditor must confirm whether the debtor is an active servicemember and then execute the military affidavit with that information. In executing a military affidavit, the creditor is confirming that he has done his due diligence in verifying the individual is an active servicemember.

At this time, I would like to turn the presentation over to Roy, and he will confirm some of the finer points of the affidavit.

Thank you very much. It’s a pleasure to be here.

Let’s first understand what the Servicemembers Civil Relief Act is. It is a law that used to have a name of the Soldiers and Sailors Act of 1948, and its goal was basically to protect those who were serving the country and basically insulate them from the headaches that might arise from collections and other adverse reactions that are happening at home. The revision of that law, which is totally revised under the name Servicemembers Civil Relief Act, expanded those protections. And as we mentioned, some of those protections involve protections against default judgments, and that’s the purpose and the goal of our webinar today.

Getting a Default Judgment

Very often when people are sued, they don’t participate in the lawsuit, and the lawyer’s next step then is to go to court and ask for a default judgment. A default judgment is where he is asking the court to rubber stamp or to approve the complaint to enter a judgment against the defendant so that the plaintiff is then able to take collections action like garnishments, attachments on bank accounts, taking possession of real estate or storage lockers, and things along those lines.

In order to get the default judgment, the Servicemembers Civil Relief Act requires some due diligence done and a document provided by the plaintiff that indicates whether or not the defendant is in military service, or if the plaintiff just cannot determine that, a statement to the effect that we just can’t figure out whether he’s in the military or not. In the latter case, very often the courts will stop the proceedings and require the posting of a bond that will have to stay in the registry of the court until an appeal is taken and fully decided upon.

And I’ve mentioned a document. This could be in many forms, but the key is it has to be sworn to under penalty of perjury. So there’s no real special form of this document.

Getting a Military Affidavit

Let’s take a look at what a military affidavit looks like. On the left is the full affidavit, and on the right is a blow-up for you. And I’m just going to go over some of the letters that I have handwritten here to illustrate certain points that are necessary in the written proof.

The letter B is a tracking number. Whenever you ask for verification of a military service from our organization, and we’ll introduce ourselves to you shortly, we give each individual name a tracking number, which is an internal number so that you can inquire about that verification request any time you want.

The active duty status date, which is at letter A, is the date that you’re searching. So for example, if you want to know if the person is in the military now, you normally would leave that blank, and our our site would automatically fill in today’s date. Rarely, you might want to know whether the person was in the military service in the past, and that can also be done by just putting in a different active duty status date. By definition, of course, you can’t put in a status date that’s in the future, because nobody can tell if the person is in the military in the future. But the ADSD, the active duty status date, is very important  because it is of that snapshot in time that we will be telling you whether the person is in the military or not.

We will not tell you, for example, whether he was in the military over a period of time, but just as of a snapshot in time.

If you look at letter C, that refers you back to the particular date of the inquiry.

Working with the DMDC

In D we refer you to the DMDC, which is the Department of Defense Manpower Data Center. That is a branch of the United States government that maintains  the computer database which is supposed to keep track of all military personnel. That database can be contacted directly by creditors, in theory really, only if you have the Social Security number. If you don’t have the Social Security number, there are some problems with the responses they give to you. And we will go over those problems, what we call the disclaimers,  that judges frown upon.

In E, you’ll see the words “subscribed and sworn.” These are the requirements under the law that says that the document has to be done under penalty of perjury.

The Servicemembers Civil Relief Act is a federal statute. It applies to all governmental jurisdictions within the United States. States are the District of Columbia, etc. There are sometimes situations where the individual states pass their own versions, in addition to the federal version, where they give more protections. Certain states require different wording in their affidavits.

Varying Requirements for Military Affidavits

Usually our military affidavits are universal, but we have learned some jurisdictions want a special wording. So if you order a jurisdiction for Texas or New York, it will have special wording. If you’re going to order the affidavit for the District of Columbia, it’s a completely different form, but generally 90 percent of the time it is the same form across the country.

Examples of the state-mandated additional wording might require that the affiant state that the affiant is older than 18 years old. The affiant is the person who is signing the affidavit. Other states require that the military affidavit has to say that it’s based on the affiant’s personal knowledge, and others ask for the basis of that knowledge. But if you order the affidavit from the SCRACVS, we will tailor it to your particular state. And if for some reason we have missed your state or you have a problem, just let us know and we will meet at the issue of correct about the data and henceforth we would make certain avenues for that jurisdiction to conform.

Now there is some discussion about the authority of who signs this affidavit. Generally, these military affidavits are signed by the lawyers who are prosecuting cases, but they can be signed by the plaintiff itself, the party that’s seeking the judgment, the agent of the plaintiff including a lawyer or an employee of the servicer. We mentioned the affidavit is under penalty of perjury. SCRACVS, our organization, the Servicemembers Civil Relief Act Centralized Verification Service, that’s the CVS at the end, will always prepare military affidavits upon request.   

A Better Military Affidavit from SCRACVS

There are many attorneys that will not sign the SCRA affidavits for fear of liability, things on those lines. They will shove that responsibility back to the creditor and servicers likewise. You do eliminate a lot of that confusion if you just get the military affidavit from us, because we are able to say that by our own personal knowledge we have checked, and these are the results rather than somebody else signing and saying on second hand that they know that the person is not the military because they contract with SCRACVS to do the verification.

The affidavit has to be done after a creditor has conducted due diligence. When I use the term “record creditor,” it’s broad; it means the bank, it means that the credit union, and the servicers who are hired by any of those organizations.  The term “due diligence” has never really been defined. There have been a couple lawsuits about what constitutes due diligence. I will tell you parenthetically that certainly using our service is going to become a complete satisfaction of the requirement of due diligence.

What is Due Diligence?

But let’s talk about what that due diligence could be if you didn’t use us. If you know the Social Security number of the individual, either the SCRACVS or the DMDC could respond, although ONLY the SCRACVS would be able to issue a military affidavit. If you don’t know the Social Security number, one of the advantages our organization as a service provider can bring to you is that we can usually find the Social Security numbers with your supplied additional information, like for example date of birth, addresses, phone numbers, names of relatives — things that you’re probably already fairly familiar with in the skip tracing situation.

Another way that you could find out if the person is in the military or not and satisfy the due diligence requirement is to ask, if you are still  on speaking terms with the individual. And then you can usually supply an affidavit to the court, and the court will usually accept and say the person himself told me he’s not in the military. That should satisfy the due diligence requirement and it would be up to the individual, local judge to determine whether that satisfies it.

Last thing is the age of individual. Almost under no circumstances are people in the active military over the age of 67, and therefore that’s one of the criteria you could use to satisfy the due diligence requirement. So you would just tell the judge the guy is over 67 years old and here’s a statute that indicates that nobody over 67 is really in active military duty. Then the court can take judicial notice that the person is not in the military.

But coming back full circle, if you use a service provider like ours, the SCRACVS, you really have satisfied the due diligence requirement.

Avoiding Disclaimers

What are they looking for in the servicemember’s affidavit? First of all, we talked about there certainly may be some special wording that the state requires in the military affidavit. If you do not have that Social Security number, there could be some problems in the affidavit which involve a disclaimer.

This is a status report that comes from the DMDC, which is the government Department of Defense database, and we use this status report, by the way, to create our affidavits. So let’s look at a status report that we would get and that you can get if you have the Social Security numbers.

First of all, you see the last name, first name at the top left of the blow-up, the active duty status date we  were talking about before, and this is somebody who has a common last name. The name here is John Smith, and we didn’t have the Social Security number; we only provided the date of birth. Look what the response is. You see the first arrow says this is the language making the certificate unusable. It just says that there are many records and that the DMDC can’t say whether the individual is on active duty or not. So it’s completely unusable.

Below you will see the all-caps language by that second arrow, which says that the above is our answer.  But since you didn’t supply a Social Security number, we’re not guaranteeing, we’re not standing behind this report. You know that the only unique identifier we use his Social Security number, except this for whatever it’s worth. And that is basically the disclaimer that I’m going to be talking about a little bit later.

What if You Don’t Have Enough Info?

Now here is an unusual last name, I just spelled the last name PLUUUUS, first name John, and again I did not put in a Social Security number. So here they’re saying if you look at the certificate itself rather than blow-up behind it, it says active duty status date N/A, active duty end date N/A, status N/A, and that basically will be a signal that the person is not in the military. What they’re telling us there’s nobody with that name and that date of birth in their database that would indicate that the person was on active military service. But you also then have this disclaimer. They’re saying again since you didn’t have the Social Security number, you can accept this for whatever it’s worth but we’re not guaranteeing it.

This is the kind of disclaimer that judges don’t like. Very often the judge will reject the military affidavit with this kind of a disclaimer, saying, well, if they’re not going to guarantee it, why should I accept that as gospel that the person is in the military or not? And then your lawyer is back to the drawing board. You lost all of the momentum. He has to go back and he has to get an affidavit without this disclaimer with a certificate and you have lost time, you’ve lost money, and you’ve lost momentum.

So we always suggest that if you don’t have the Social Security number, you do use a service provider just to keep the case moving along and to avoid problems like you can see.

Alternative Methods

There are ways besides using our service to get compliance. For example, you could conceivably write to the various branches. The branches of the government in which a person may be serving would be not only Army, Navy, Marines, Air Force, etc., but could also include commissioned officers in the public health service and commissioned officers at National Oceanic and Atmospheric Administration — NOAA. These are uniform-wearing servicemembers, and they are entitled to the protections of the Servicemembers Civil Relief Act. So you could write a letter to each one of those seven agencies and include a check for $5.40 to each and hope for the best.

But I will tell you that would be a complete waste of time. Why would that be? Because the Army has said categorically they do not process these. They don’t have the manpower to process it. So what you’ll do is you will have an uncashed check sitting in your bank account ad infinitum, and you will not have any response from the army upon which you could base your claim for due diligence. So it’s not an advisable way to do it. Interestingly enough, if you take that $5.40 times those seven agencies and you multiply it, you get $40, which is exactly the charge that we have for a servicemember certification. So if anybody’s wondering why we come up with that number, it is because that’s what you would pay out of pocket if you decided to write to each and every agency on your own.

Why Use SCRACVS?

The advantages to using a service provider such as SCRACVS is not only that we can find Social Security numbers (that’s that’s our forte), but we also handle large quantities of servicemember inquiries. We have the retail version of our service for people who just once in awhile need to verify military service, but we also have what we call batch or wholesale operations, where people submit to us large, large databases, sometimes well in excess of 30,000 names at a time, and ask us to run verifications of all of those. That becomes a very smooth automated procedure.

After it’s set up, you’re almost not touching it. You’re sending a file, it’s processed and we send the same file that you send back to you. The only change is that we will have deleted all the Social Security numbers. All batch services require Social Security numbers. We will have deleted the Social Security number, and we will give you back those additional data fields that we needed to insert, for example, whether the person is in the military, the agency that he is with, when he has started and when he has stopped.

Timing Is Critical

Servicemember protections do not just end when the person leaves the military. Some of those protections extend for an additional 90 days afterwards. So the date of termination of service becomes very important. You can’t just stop reading in the middle of the affidavit.

If I say to you this person is retired and he has a retirement date of September 2014, you have to count very carefully within the 90  days to determine whether the person still enjoys his military protections under SCRA. Once you get the data file back, the lenders of the services are able to incorporate that data right into their database, so you don’t necessarily have two separate databases float floating around. You have our information right in your database, and many of our very large national banks enjoy this, because integration, the level of automation, and security are the factors that they’re really looking for.

Military Affidavits Available

We also prepare military affidavits. When you order a servicemember’s verification at the retail level, you will get an email reply. The timing is usually within 15 minutes, if you have a Social Security number, and by the end of that business day without a Social Security number. We will also supply an affidavit, which will go out the next business day.

If you go directly to DMDC, they of course do not have the ability to hand out military affidavits, nor is there anybody to answer the phone. At our organization, somebody is always available to answer the phone during business hours, and it’s usually a person who is pretty knowledgeable who can walk you through any of the one of problems you might encounter.

Technical Difficulties

The DMDC site also goes down very, very often. I would say at times it could be more than one or two times a day. The advantage to using a service provider is that your request is queued and poised to be acted upon as soon as the site goes back up. So you know that your search is there holding its place in line and ready to be responded to as soon as the DMDC site goes back up.

Looking here at our website, the registration is of course no charge, and there is only a per-name charge of $40 for verification, and an additional $30 if you happen to need an affidavit.

Moderator: We have a few questions for you.

Who Does the Servicemembers Civil Relief Act Cover?

There’s a technical aspect to the answer I’m afraid. I will tell you that on our site there is a blog and an FAQ section which has many, many articles on exactly that question and deals with it in a lot of detail. The obvious answer is certainly people who are in the military right now are going to be covered in those seven agencies.

National Guard members are also covered under only one circumstance, and that is if the call-up is by the president not by a governor, and the person’s service exceeds 30 days and his or her salary is paid for by the federal government. So that’s what’s covered under the SCRA for the National Guard. But some states also have coverage for governor call-ups. So you do have to make sure on your local state whether there is that protection too.

Reservists are protected as of the date of their call-up orders. So if they’re called up to serve and they receive their orders today to report on Sept. 1, they enjoy their coverage right now, not on the date that they report for duty. I mentioned before also that peoples’ coverage can extend beyond the termination date of active duty.

Special Circumstances

There are some issues about family members. Family members are not automatically covered under the Servicemembers Civil Relief Act. However, once a matter goes to court, the family member is entitled to ask the court for protections, and in that case the court has a very broad latitude. The court can determine what is the nature of the obligation, whether the obligation predated active duty, which is usually the touchstone for whether an obligation is covered by the SCRA.

Normally, if a servicemember enters into a contract after he has joined active duty, the application of SCRA benefits is much more limited and may or may not even apply. The court in response to a request from a family member about SCRA benefits may determine whether there are any other resources available to the family, and the circumstances around the request. There are no provisions for attorneys’ fees under SCRA, so it is an expensive proposition for the family to go in and ask for that determination. It’s not done often, but the protections are there.

Does this military affidavit only come into play for consumer collections, or is this something I will see at a commercial collector?

The debtor has to be an individual, as the SCRA does not apply to any business entities. But there is no differentiation between a consumer debt and a commercial debt under SCRA. if you were to take adverse action against a person who may be covered by SCRA, that’s the determining factor of whether the person you’re suing is entitled to the protections, not necessarily the nature of the obligation.