If you are a National Guard or Reserve member called up for active duty, you need to know about the entire array of federal and state benefits available. These laws can help you avoid legal problems, retain your job, and possibly save money. Recognizing the disruption that call-ups cause to your life, and intending to free you from harassment and injury in connection with your civil affairs so that you can devote full attention to duty, Congress and the Massachusetts Legislature have provided protection by way of a number of rights and benefits. You are entitled to protection by the following laws which are highlighted below.
Maximum rate of interest:
If, prior to entering service, you incur a loan or obligation (including credit cards) with an interest rate in excess of 6%, you will, upon written application to the lender, not be obligated to pay interest in excess of 6% per annum during any part of the period of military service and such excess payments will be forgiven, unless the court finds your ability to pay has not been materially affected.
Rent and eviction:
If your rent is under $2,615.16 per month, your landlord cannot evict your dependents from your primary residence unless the landlord obtains a court order. (This monthly rent maximum was adjusted for inflation in January 2006.) Should the landlord seek a court order, the court may stay the proceedings for 90 days.
Termination of residential leases:
If you entered into a residential lease before you started active duty, or you are on active duty and receive orders for a permanent change of station, or deploy with a unit for 90 days or more, and the leased premises have been occupied by you or your dependents, you can terminate it. To terminate the lease, you must deliver written notice to the landlord along with a copy of your military orders. The effective date of termination for month-to-month rentals is 30 days after the date of the next rental payment due. (i.e. If your landlord received your notice of termination on June 10, you would still be responsible for the July 1 rent payment, and your lease would terminate on July 31.) For all other leases, termination becomes effective on the last day of the month following the month in which proper notice is delivered. You are required to pay rent for only those months before the lease is terminated. If you paid rent in advance, the landlord must prorate and refund the unearned portion. If you paid a security deposit, it must be returned upon termination of the lease.
Motor vehicle leases:
If you leased a motor vehicle for personal or business use by you or your dependents, you may terminate the lease provided that the lease began before you started active duty, and you were called to serve active duty for 180 days or more, or if you executed the lease and afterwards received military orders for a permanent change of station outside the continental U.S., or if you are deployed with a military unit for a period of 180 days or more. To terminate the lease, send a written notice and a copy of your military orders to the leasing company. The lease will terminate on the day you return the vehicle, which must be within 15 days of your written notice to terminate. You will not be required to pay an early termination charge, but you may still be responsible for title and registration fees, taxes, and/or excess mileage charges.
Protection from court proceedings:
For certain important provisions of the SSCRA (excluding evictions and repossessions) to be of benefit, your ability to either defend or pursue a civil action must be materially affected by your military service.
Protection when you have not received notice of a lawsuit:
Before a court can enter a default judgment for your failing to respond to a lawsuit or appear at trial for which you have not received notice, the person who is suing you must provide the court with an affidavit stating
32 • Veterans’ Laws and Benefits whether or not you are in military service. If you are in military service, the court must appoint an attorney to represent you before any judgment is entered. If the attorney cannot locate you, or if you have a defense to the proceedings and you must be present to assert this defense, the court will grant a stay (delay) in the proceedings for 90 days or more.
If a default judgment is entered against you, the judgment may be reopened if you apply within 60 days after leaving active duty provided that you have a valid defense against the action, and that your military service materially affected you from asserting this defense.
Protection when you have received notice of a lawsuit:
The court can grant a stay (delay) for 90 days or more if you provide the court with a written document stating that your military duty has materially affected your ability to appear, and the date you will be able to appear. This requirement can also be satisfied by a letter from your CO stating that your military duty prevents your appearance in court and that you are not authorized for leave.
If you are not available to appear in court, and the court refuses to grant a stay in the proceedings, the court must appoint an attorney to represent you.
Note: Your time in service cannot be used to compute the time limits (statute of limitations) for bringing any action or proceeding by or against a member, whether in court or elsewhere (except for federal tax laws).
None of the above provisions apply to eviction proceedings. (For issues related to evictions, please refer to the section above on “Rent and Eviction.”)
If, prior to entry into active duty, you entered into an installment contract for the purchase of real personal property, you will be protected from court proceedings as above if your ability to make payment is materially affected by the military service.
Foreclosures on installment contracts:
You are protected from court proceedings as above against foreclosure so long as the obligation is secured by real or personal property, the debt was incurred before active duty, the property was owned by you or your dependents before active duty, the property is still owned by you or your dependents, and your ability to pay is materially affected by such service.
You are entitled to reinstatement of any health insurance that was in effect on the day before service began as of the date of reemployment. You may not be subjected to a waiting period, coverage limitations, or exclusions for pre-existing medical conditions because of the lapse in coverage. You must apply for reinstatement within 120 days of release from military service. USERRA and SCRA provide similar protections regarding health insurance coverage.
Life and professional insurance:
Your private life insurance policy is protected against lapses, termination, decrease in coverage, increase in premiums (except for increase in premiums based on age) and forfeiture for nonpayment of premiums or for the nonpayment of any indebtedness for the period of military service plus two years. You can suspend your professional liability insurance upon written request to the insurance carrier for the period of your active duty. You or your beneficiary must apply to the U.S. Department of Veterans Affairs to receive this protection.
Your state of legal domicile may tax your military income and real and personal property. Legal domicile is not changed solely by military service. Federal and state income tax may be deferred for the period of your military service plus six months if your ability to pay is materially impaired by your military service.
Taxes and assessments on personal/real property:
Taxes on personal property (including motor vehicles) that fall due and remain unpaid during a period of military service cannot bear an interest rate of more than 6% per year and cannot be subject to additional fees and penalties. During the period of your military service, your property cannot be sold to satisfy a tax
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obligation or assessment except upon a court order. The court determines if a stay is appropriate. (See also “real estate tax,” below.)
If you are called up to active duty, from either the public or the private sector, you are guaranteed your
job and additional rights when you return to your job, under the Uniformed Service Employment and Reemployment Rights Act of 1994, (USERRA), Title 38 of the U.S. Code of 4301. So long as before activation you give advance notice to the employer, you are not gone for more than five years, you receive an honorable or general discharge, and you promptly return to work, you are protected. Essentially USERRA provides that you have the same job and benefits as when you left. It is as though you never left. For more information, visit www.dol.gov/elaws/vets/userra/userra.asp.