50 U.S.C. § 3932 — Stay of proceedings when servicemember

Page 992 TITLE 50—WAR AND NATIONAL DEFENSE § 3932 declaration, verification, or certificate as au- thorized under subsection (b)(4)) knowing it to be false, shall be fined as provided in title 18, or imprisoned for not more than one year, or both. (d) Stay of proceedings In an action covered by this section in which the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days under this subsection upon ap- plication of counsel, or on the court’s own mo- tion, 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 un- able to contact the defendant or otherwise de- termine if a meritorious defense exists. (e) Inapplicability of section 3932 procedures A stay of proceedings under subsection (d) shall not be controlled by procedures or require- ments under section 3932 of this title. (f) Section 3932 protection If a servicemember who is a defendant in an action covered by this section receives actual notice of the action, the servicemember may re- quest a stay of proceeding under section 3932 of this title. (g) Vacation or setting aside of default judg- ments (1) Authority for court to vacate or set aside judgment If a default judgment is entered in an action covered by this section against a servicemember during the servicemember’s pe- riod of military service (or within 60 days after termination of or release from such mili- tary service), the court entering the judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to de- fend the action if it appears that— (A) the servicemember was materially af- fected by reason of that military service in making a defense to the action; and (B) the servicemember has a meritorious or legal defense to the action or some part of it. (2) Time for filing application An application under this subsection must be filed not later than 90 days after the date of the termination of or release from military service. (h) Protection of bona fide purchaser If a court vacates, sets aside, or reverses a de- fault judgment against a servicemember and the vacating, setting aside, or reversing is because of a provision of this chapter, that action shall not impair a right or title acquired by a bona fide purchaser for value under the default judg- ment. (Oct. 17, 1940, ch. 888, title II, § 201, as added Pub. L. 108–189, § 1, Dec. 19, 2003, 117 Stat. 2840; amend- ed Pub. L. 110–181, div. A, title V, § 584(a), Jan. 28, 2008, 122 Stat. 128.) Editorial Notes CODIFICATION Section was formerly classified to section 521 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 201 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to stay of proceedings where mili- tary service affects conduct thereof, prior to the gen- eral amendment of this Act by Pub. L. 108–189. See sec- tion 3932 of this title. Provisions similar to this section were contained in section 200 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1180; Pub. L. 86–721, §§ 1, 2, Sept. 8, 1960, 74 Stat. 820, prior to the general amendment of this Act by Pub. L. 108–189. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–181 inserted ‘‘, including any child custody proceeding,’’ after ‘‘proceeding’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title. § 3932. Stay of proceedings when servicemember has notice (a) Applicability of section This section applies to any civil action or pro- ceeding, including any child custody proceeding, in which the plaintiff or defendant at the time of filing an application under this section— (1) is in military service or is within 90 days after termination of or release from military service; and (2) has received notice of the action or pro- ceeding. (b) Stay of proceedings (1) Authority for stay At any stage before final judgment in a civil action or proceeding in which a servicemember described in subsection (a) is a party, the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days, if the conditions in paragraph (2) are met. (2) Conditions for stay An application for a stay under paragraph (1) shall include the following: (A) A letter or other communication set- ting forth facts stating the manner in which current military duty requirements materi- ally affect the servicemember’s ability to appear and stating a date when the servicemember will be available to appear. (B) A letter or other communication from the servicemember’s commanding officer stating that the servicemember’s current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter. (c) Application not a waiver of defenses An application for a stay under this section does not constitute an appearance for jurisdic- Page 993 TITLE 50—WAR AND NATIONAL DEFENSE § 3934 tional purposes and does not constitute a waiver of any substantive or procedural defense (includ- ing a defense relating to lack of personal juris- diction). (d) Additional stay (1) Application A servicemember who is granted a stay of a civil action or proceeding under subsection (b) may apply for an additional stay based on con- tinuing material affect of military duty on the servicemember’s ability to appear. Such an ap- plication may be made by the servicemember at the time of the initial application under subsection (b) or when it appears that the servicemember is unavailable to prosecute or defend the action. The same information re- quired under subsection (b)(2) shall be included in an application under this subsection. (2) Appointment of counsel when additional stay refused If the court refuses to grant an additional stay of proceedings under paragraph (1), the court shall appoint counsel to represent the servicemember in the action or proceeding. (e) Coordination with section 3931 A servicemember who applies for a stay under this section and is unsuccessful may not seek the protections afforded by section 3931 of this title. (f) Inapplicability to section 3951 The protections of this section do not apply to section 3951 of this title. (Oct. 17, 1940, ch. 888, title II, § 202, as added Pub. L. 108–189, § 1, Dec. 19, 2003, 117 Stat. 2842; amend- ed Pub. L. 108–454, title VII, § 703, Dec. 10, 2004, 118 Stat. 3624; Pub. L. 110–181, div. A, title V, § 584(b), Jan. 28, 2008, 122 Stat. 128.) Editorial Notes CODIFICATION Section was formerly classified to section 522 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 202 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to fines and penalties on con- tracts, prior to the general amendment of this Act by Pub. L. 108–189. See section 3933 of this title. AMENDMENTS 2008—Subsec. (a). Pub. L. 110–181 inserted ‘‘, including any child custody proceeding,’’ after ‘‘civil action or proceeding’’ in introductory provisions. 2004—Subsec. (a). Pub. L. 108–454 inserted ‘‘plaintiff or’’ before ‘‘defendant’’ in introductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title. STAY OF JUDICIAL PROCEEDINGS Pub. L. 102–12, § 6, Mar. 18, 1991, 105 Stat. 37, provided that: ‘‘(a) STAY OF ACTION OR PROCEEDING.—In any judicial action or proceeding (other than a criminal proceeding) in which a member of the Armed Forces described in subsection (b) is involved (either as plaintiff or defend- ant), the court shall, upon application by such member (or some other person on the member’s behalf) at any stage before final judgment is entered, stay the action or proceeding until a date after June 30, 1991. ‘‘(b) MEMBERS COVERED.—A member of the Armed Forces is covered by subsection (a) if at the time of ap- plication for the stay of a judicial action or proceeding the member— ‘‘(1) is on active duty; and ‘‘(2) is serving outside the State in which the court having jurisdiction over the action or proceeding is located. ‘‘(c) DEFINITION.—For purposes of this section, the term ‘State’ includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, and Guam.’’ § 3933. Fines and penalties under contracts (a) Prohibition of penalties When an action for compliance with the terms of a contract is stayed pursuant to this chapter, a penalty shall not accrue for failure to comply with the terms of the contract during the period of the stay. (b) Reduction or waiver of fines or penalties If a servicemember fails to perform an obliga- tion arising under a contract and a penalty is in- curred arising from that nonperformance, a court may reduce or waive the fine or penalty if— (1) the servicemember was in military serv- ice at the time the fine or penalty was in- curred; and (2) the ability of the servicemember to per- form the obligation was materially affected by such military service. (Oct. 17, 1940, ch. 888, title II, § 203, as added Pub. L. 108–189, § 1, Dec. 19, 2003, 117 Stat. 2843.) Editorial Notes CODIFICATION Section was formerly classified to section 523 of the former Appendix to this title prior to editorial reclassi- fication and renumbering as this section. PRIOR PROVISIONS A prior section 203 of act Oct. 17, 1940, ch. 888, art. II, 54 Stat. 1181, related to stay or vacation of execution of judgments and attachments, prior to the general amendment of this Act by Pub. L. 108–189. See section 3934 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable to any case not final before Dec. 19, 2003, see section 3 of Pub. L. 108–189, set out as a note under section 3901 of this title. § 3934. Stay or vacation of execution of judg- ments, attachments, and garnishments (a) Court action upon material affect determina- tion If a servicemember, in the opinion of the court, is materially affected by reason of mili- tary service in complying with a court judgment or order, the court may on its own motion and shall on application by the servicemember— (1) stay the execution of any judgment or order entered against the servicemember; and