Kyle M. Seay, Supervising Attorney, was recently featured in the national publication, Servicing Management.
Michigan Evictions and the SCRA
Compliance with the Servicemember’s Civil Relief Act, 50 U.S.C.S. § 3902 (“SCRA”), is something that servicers and practitioners must be vigilant about throughout the foreclosure and eviction processes. In recent years, we have seen an increase in oversight regarding these protections, and for good reason. The application of the SCRA’s federal requirements to state-specific processes can prove challenging for compliance specialists who want to ensure they are adhering to the law while avoiding an overbearing process which may limit efficiency. The eviction process in Michigan is no exception to this principle.
Due to Michigan being a redemption state, the post-foreclosure redemption period is tolled while any borrower is in active military service[1]. Therefore, unless a borrower was called into active military service after the redemption period expired, but before the eviction is complete, it is highly unlikely that a Defense Manpower Data Center[2] (“DMDC”) search would reveal positive results on any borrower during an eviction. When SCRA protections may become necessary in a Michigan eviction, it is usually because a non-borrower occupant or dependant lists the foreclosed property as their principal residence and their occupancy is brought to light after the complaint is filed. The SCRA protects servicemembers or their dependents, in active military service, from being evicted from properties occupied or intended to be occupied as a residence, unless a court order allows the eviction judgment to enter after certain protective measures have been taken.[3] The protective measures include the general SCRA rule against taking a default judgment against an active military member without the court appointing an attorney[4] on their behalf as well as a 90-day stay before a judgment of possession can be entered. The SCRA leaves much discretion to the eviction judge to impose a longer or shorter stay depending on the circumstances surrounding the eviction and the servicemember’s military status.
As referred to above, the most common SCRA scenario in a Michigan eviction is when the child of a borrower is in the military and lists the foreclosed home as his or her primary residence. Judges are reluctant to enter judgment where they would be evicting a servicemember’s personal property while they are on active duty. Under these facts, it is best to work with the borrowers and the servicemember to reach some sort of agreement whereby an SCRA waiver can be obtained from the servicemember possibly in exchange for an extended move-out date. Many times, the servicemember would be happy to sign a waiver if it assists his or her family members in peacefully transitioning to their new residence. Additionally, due to the likelihood of the judge issuing a 90day stay of the eviction, providing the additional time to vacate would not impede the actual recovery timeline but would help avoid any negative publicity. This is only one example of how active duty occupants can affect an eviction. However, our professional experience has shown that coming to a reasonable solution for all parties involved, within the bounds of the law, is attainable.
One area which has grown immensely in recent years is the filing of non-military affidavits in an eviction action. Because there is usually only one eviction hearing held shortly after the complaint is filed, there is no way to tell which borrowers and occupants will be appearing and which ones would be getting defaulted, thus requiring that an affidavit be filed. Therefore, the recommended course of action many servicers employ is to simply file non-military affidavits on all named borrowers when the initial complaint is being filed with the court. While many state court clerks were resistant to the process when it first began as there is no state law that mandates the affidavit’s filing, most clerks now understand their necessity and will return time stamped copies of the affidavit without issue. Our office recommends that non-military affidavits be filed along with all eviction complaints to ensure compliance with SCRA requirements.
Protecting those who protect us is the virtue upon which the SCRA is based. When a servicemember’s interests are being affected by a foreclosure or eviction, the legal process should be navigated on a case-by-case basis, in accordance with the advice of counsel, to ensure compliance and to avoid any negative consequences. Numerous Defense Manpower Data Center (DMDC) searches along with the requisite affidavits, will often catch or prevent any potential issues before they come about. Potestivo & Associates, P.C. is dedicated to protecting our client’s interests while ensuring that proper SCRA protections are provided. If SCRA questions or concerns arise at any time, please do not hesitate to contact our office.
[1] 50 U.S.C.S. § 3936 (b)
[2] https://www.dmdc.osd.mil/appj/dwp/index.jsp
[3] 50 U.S.C.S. § 3931
[4] 50 U.S.C.S. § 3951
For more information, visit http://www.mortgageorb.com/online/issues/SVM1606_1607/FEAT_06_Michigan-Evictions-And-The-SCRA.html
Kyle M. Seay began his career at Potestivo & Associates, P.C. as a law clerk in the firm’s Litigation Department. His extensive legal research and writing skills allowed him to meet the firm’s extremely high standards in the many facets of civil litigation. After passing the bar, Kyle joined the firm’s Landlord/Tenant Department where he has found his niche representing clients in landlord/tenant and judicial foreclosure cases. He currently serves as the Landlord/Tenant Department’s Supervising Attorney.