Local Rule LBR 9012-1: Compliance with the Servicemembers Civil Relief Act

LBR 9012-1 Compliance with the Servicemembers Civil Relief Act In order to comply with § 521 of the Servicemembers Civil Relief Act (the "Act") regarding the entry of default judgments and other applicable parts of the Act, 50 U.S.C. app. §§ 501, et seq., the court requires the following:

(a) Default Judgments. At the time of the filing of a motion for default judgment in an adversary proceeding pursuant to Bankruptcy Rule 7055, the plaintiff must file an affidavit with the court which states: (1) whether or not the defendant is in the military service, and indicating the necessary facts to support said affidavit, or (2) if the plaintiff is unable to determine whether or not the defendant is in the military service, a statement that the plaintiff is unable to so determine. See § 521(b)(1) of the Act.

If a plaintiff moving for a default judgment does not submit the required affidavit, the motion will be denied. If the court is unable to ascertain the defendant's military status from the presented affidavit, it may require the plaintiff to file a bond before entering any default judgment. Section 521(b)(4) of the Act states that the affidavit requirement "may be satisfied by a statement, declaration, verification or certificate, in writing, subscribed and certified or declared to be true under penalty of perjury."

(b) Motions for Relief from the Automatic Stay. At the time of the filing of a motion for relief from stay under Bankruptcy Rule 4001, the movant must file an affidavit with the court which states: (1) whether or not the respondent is in the military service, and indicating the necessary facts to support said affidavit, or (2) if the movant is unable to determine whether or not the respondent is in the military service, a statement that the movant is unable to so determine. See § 521(b)(1) of the Act.

The court will not enter any orders lifting the stay if the movant does not supply the required affidavit. If the court is unable to ascertain the respondent's military status from the presented affidavit, it may require the movant to file a bond before entering any order lifting the stay.

(c) Motions and Contested Matters. At the time of the filing of any motion requesting a remedy which may be granted by the court for a party's failure to respond, movant must also certify whether the respondent is a servicemember, as required by § 521(b)(1) of the Act.

(d) Debtor's Information. In order to assist the court in its determination of a debtor's status under the Act, a debtor should inform the court if he or she is a servicemember subject to the provisions of the Act at the time of the filing of the bankruptcy petition by submitting a separate writing in the form of Director's Form B 2020 issued by the Director of the Administrative Office of the United States Courts, a copy of which is available at www.uscourts.gov or on the Website. If, at any time during the pendency of the bankruptcy proceedings, a debtor becomes entitled to the protections of the Act, he or she should inform the court of the change in military status within fourteen (14) days of the change in status. Failure by the debtor to inform the court of his or her military status does not in any way constitute a waiver of the debtor's protections under the Act and does not alter the responsibility of a party to investigate the debtor's servicemember status before filing any of the papers referred to in subparagraphs (a) through (c) of this LBR.

(e) Verification. Information on verification of the military status of an individual is available from the clerk's office or on the Website.