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Mortgage Relief for Kin of Gulf Military?

September 23, 1990|BENNY L. KASS | Kass is a Washington lawyer and newspaper columnist specializing in real estate and tax matters

QUESTION: My husband is in the Air Force Reserves, and his unit has just been activated. He is somewhere in the Middle East. There is a mortgage payment due in October, and because of the reduced salary, I am not sure that I will be able to make the payment.

I have heard that there is an old law giving active duty personnel some relief while they are in the military, and would appreciate if you would explain the provisions of this law.

ANSWER: In World War I, Congress enacted the Soldiers and Sailors Civil Relief Act of 1918. This law was forgotten between World War I and World War II, but when we entered into the second world war, Congress re-enacted the Soldiers and Sailors Relief Act of 1940.

Although there have been a few minor amendments to that act, for all practical purposes, the 1940 law is still on the books.

To be protected under the act, a person has to be in active military service. The preamble spells out the act's purposes:

"To provide for, strengthen and expedite the national defense under the emergent conditions which are threatening the peace and security of the United States and to enable the United States the more successfully to fulfill the requirements of the national defense, provision is hereby made to suspend enforcement of civil liabilities, in certain cases, of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the nation. . . ."

Remember, our nation was just going into the second World War, and Congress wanted to assure that people serving in the military could devote their time to the military activities, rather than having to worry about problems back home.

There are a number of protections available under the act. This column cannot catalogue all of those benefits, but here are some of the most important aspects of the law.

Under normal circumstances, if a person has been sued in a court (whether state, federal or local) and if that defendant has not filed an appropriate answer, the suing party (the plaintiff) can obtain a default judgment.

However, before the plaintiff can obtain such a default judgment, the plaintiff must file an affidavit in court indicating that the defendant is not in military service.

If the affidavit turns out to be false, the defendant against whom the default judgment was entered has the right, not later than 90 days after termination of the military service, to have the case reopened and the default judgment set aside, on the condition, however, that the defendant has a meritorious or legal defense to the lawsuit.

If a person is in active military service and there is a lawsuit pending in court, the court has the authority to put a hold on a lawsuit--legally known as a stay--unless "in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service."

In other words, the court will not automatically stay the lawsuit, but the burden is on the active military person to demonstrate that military service would interfere with the progress of the litigation.

With respect to your question about mortgage payments, the law specifically states that "no obligation or liability bearing interest at a rate in excess of 6% per annum incurred by a person in military service prior to his entry into such service shall, during any part of the period of military service . . . bear interest at a rate in excess of 6% per annum. . . ."

If you can demonstrate that the monthly mortgage payments is affected, then the court has the authority to limit your mortgage payment interest rate to 6%--but only while your husband is on active military duty.

One would hope that lenders will cooperate and voluntarily reduce mortgage payment rate to 6% while the mortgage borrower is in the military. But if the lender is not willing to make a voluntary agreement, you do have court protection if you can demonstrate that you would have trouble making the mortgage payments.

I strongly suggest that you immediately contact your mortgage lender, advise them of the circumstances, and determine what their position will be with respect to your future mortgage payments. If you reach agreement with the lender that is satisfactory to you, make sure that this agreement is in writing and signed by the lender.

It should also be noted that this law applies to all obligations--such as credit card bills--and is not limited to mortgage payments.

Additionally, if the person on active military duty is a tenant, the law specifically states that "no eviction shall be made during the period of military service in respect of any premises for which the agreed rent does not exceed $150 per month, occupied chiefly for dwelling purposes by the wife, children, or other dependents of a person in military service. . . ."

Of course, today rents are rarely $150 a month in this area, so this protection will be of little practical consequence.

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