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LAW REVIEW 1078
Don’t Sacrifice Military Personnel to “Paperwork Problems” in Foreclosures
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
4.3—Right to Continuance and Protection against
Default Judgment
You have no doubt read many
media reports on our nation’s
foreclosure crisis. Many of these
reports have minimized the significance of the “paperwork problems” that
threaten to bring the foreclosure process to a grinding halt. We should not minimize the significance of
law firms short-circuiting required due process procedures through the use of
affidavits “robo signed” by persons having no knowledge of the facts to which
they have averred under oath.
The Due Process Clause of
the Constitution’s 14th Amendment and a federal statute called the
Servicemembers Civil Relief Act (SCRA) protect the interests of active duty
members of our armed forces. Their
legitimate interests must not be sacrificed because their service to our
country has taken them thousands of miles away from their homes, their
families, and civil lawsuits that may be filed against them. Congress enacted the SCRA in 2003, as a
long-overdue recodification of the Soldiers’ and Sailors’ Civil Relief Act
(SSCRA), which dates back to 1917, when our country entered World War I.
The SSCRA and SCRA require,
before a default judgment can be awarded against any defendant in a civil
lawsuit (state or federal), the plaintiff to aver under oath that the defendant
is not a member of the armed forces on active duty. If the defendant is on active duty, federal
law requires that certain steps be taken to ensure that the defendant has an
opportunity to present his or her side of the case. The defendant who is serving on active duty
in a place like Afghanistan may not even be aware that the lawsuit has been
filed.
Please see https://www.dmdc.osd.mil/appi/scraHome.do. This is a
free service provided by the Defense Manpower Data Center of the Department of
Defense. Anyone can determine in just a
few minutes, and for no charge, whether a specific named person is or is not on
active duty. Before affixing your “robo
signature” to an affidavit attesting that a named person is not on active duty,
you should at least utilize this free service to find out.
I invite the readers’
attention to Hurley v. Deutsche Bank
Trust Company Americas, 2010 WL 2605853 (6th Cir. July
1, 2010). James B. Hurley is a Sergeant in the Michigan
Army National Guard. He was on active
duty in Iraq when Deutsche Bank initiated a foreclosure action against
him. In order to facilitate a sheriff’s
sale of Hurley’s home, a paralegal at a “foreclosure mill” law firm signed an
affidavit stating: “The undersigned,
being first duly sworn, states that upon investigation he is informed and
believes that none of the persons named in the notice attached to the sheriff’s
deed of mortgage foreclosure, nor any person on whom they or any of them were
dependent, were in the military service of the United States at the time of the
sale or for six months prior thereto.”
Even after the process server returned a note to the effect that James
B. Hurley was reported to be in the Army in Iraq, the paralegal executed a
second affidavit to the effect that Hurley was not in military service. When deposed during Hurley’s federal court
lawsuit against the bank and its law firm, the paralegal acknowledged that he
had not done any investigation to determine Hurley’s military status but had
simply signed his name to documents as instructed by a law firm attorney.
The Department of Defense
reports that as of Oct. 26 788,949 National Guard and Reserve personnel have been called to the
colors since the terrorist attacks of September 11, 2001. Some of the
“paperwork problems” in the foreclosure mess have to do with false affidavits
stating that the homeowner is not in the military when in fact he or she is, as
in the case of Sergeant Hurley. There
are good reasons for the steps that must be taken before a homeowner loses his
or her home. We should not countenance
law firms that short-circuit these steps through “robo signatures” on
affidavits.
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