BILL REQ. #:  H-2326.1 

READ FIRST TIME 03/04/05.   

     AN ACT Relating to service members' civil relief; adding a new chapter to Title 38 RCW; prescribing penalties; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   DEFINITIONS. The definitions in this section apply throughout this chapter.
     (1) "Dependent" means:
     (a) The service member's spouse;
     (b) The service member's child; or
     (c) An individual for whom the service member provided more than one-half of the individual's support for one hundred eighty days immediately preceding an application for relief under this chapter.
     (2) "Military service" means a service member under a call to active service authorized by the president of the United States or the secretary of defense for a period of more than thirty consecutive days.
     (3) "National guard" has the meaning in RCW 38.04.010.
     (4) "Service member" means any resident of Washington state that is a member of the national guard or member of a military reserve component.

NEW SECTION.  Sec. 2   APPLICABILITY OF CHAPTER. (1) Any service member who is ordered to report for military service and his or her dependents are entitled to the rights and protections of this chapter during the period beginning on the date on which the service member receives the order and ending one hundred eighty days after termination of or release from military service.
     (2) This chapter applies to any judicial or administrative proceeding commenced in any court or agency in Washington state in which a service member or his or her dependent is a defendant. This chapter does not apply to criminal proceedings.
     (3) This chapter shall be construed liberally so as to provide fairness and do substantial justice to service members and their dependents.

NEW SECTION.  Sec. 3   PROTECTION OF PERSONS SECONDARILY LIABLE. (1) Whenever pursuant to this chapter a court stays, postpones, or suspends (a) the enforcement of an obligation or liability, (b) the prosecution of a suit or proceeding, (c) the entry or enforcement of an order, writ, judgment, or decree, or (d) the performance of any other act, the court may likewise grant such a stay, postponement, or suspension to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be primarily or secondarily subject to the obligation or liability the performance or enforcement of which is stayed, postponed, or suspended.
     (2) When a judgment or decree is vacated or set aside, in whole or in part, pursuant to this chapter, the court may also set aside or vacate, as the case may be, the judgment or decree as to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be primarily or secondarily liable on the contract or liability for the enforcement of the judgment decree.

NEW SECTION.  Sec. 4   PROTECTION OF SERVICE MEMBERS AGAINST DEFAULT JUDGMENTS. (1) This section applies to any civil action or proceeding in which a service member or his or her dependent is a defendant and does not make an appearance.
     (2) In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit:
     (a) Stating whether the defendant is in military service, or is a dependent of a service member in military service, and showing necessary facts to support the affidavit; or
     (b) If the plaintiff is unable to determine whether the defendant is in military service or is a dependent of a service member in military service, stating that the plaintiff is unable to determine whether the defendant is in military service or is a dependent of a service member in military service.
     (3) If in an action covered by this section it appears that the defendant is in military service or is a dependent of a service member in military service, the court may not enter a judgment until after the court appoints an attorney to represent the defendant. If an attorney appointed under this section to represent a service member or his or her dependent cannot locate the service member or dependent, actions by the attorney in the case do not waive any defense of the service member or dependent or otherwise bind the service member or dependent.
     (4) In an action covered by this section in which the defendant is in military service or is a dependent of a service member in military service, the court shall grant a stay of proceedings until one hundred eighty days after termination of or release from military service, upon application of defense counsel, or on the court's own motion, if the court determines that:
     (a) There may be a defense to the action and a defense cannot be presented without presence of the defendant; or
     (b) After due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.
     (5) If a service member or dependent who is a defendant in an action covered by this section receives actual notice of the action, the service member or dependent may request a stay of proceedings pursuant to section 5 of this act.
     (6) A person who makes or uses an affidavit permitted under this section knowing it to be false, is guilty of a class C felony.
     (7) If a default judgment is entered in an action covered by this section against a service member or his or her dependent during the service member's period of military service or within one hundred eighty days after termination of or release from military service, the court entering the judgment shall, upon application by or on behalf of the service member or his or her dependent, reopen the judgment for the purpose of allowing the service member or his or her dependent to defend the action if it appears that:
     (a) The service member or dependent was materially affected by reason of that military service in making a defense to the action; and
     (b) The service member or dependent has a meritorious or legal defense to the action or some part of it.
     (8) If a court vacates, sets aside, or reverses a default judgment against a service member or his or her dependent and the vacating, setting aside, or reversing is because of a provision of this chapter, that action does not impair a right or title acquired by a bona fide purchaser for value.

NEW SECTION.  Sec. 5   STAY OF PROCEEDINGS WHEN SERVICE MEMBER HAS NOTICE. (1) This section applies to any civil action or proceeding in which a defendant at the time of filing an application under this section:
     (a)(i) Is in military service, or it is within one hundred eighty days after termination of or release from military service; or
     (ii) Is a dependent of a service member in military service; and
     (b) Has received actual notice of the action or proceeding.
     (2) At any stage before final judgment in a civil action or proceeding in which a service member or his or her dependent described in subsection (1) of this section is a party, the court may on its own motion and shall, upon application by the service member or his or her dependent, stay the action until one hundred eighty days after termination of or release from military service, if the conditions in subsection (3) of this section are met.
     (3) An application for a stay under subsection (2) of this section shall include the following:
     (a) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the service member's or dependent's ability to appear and stating a date when the service member or dependent will be available to appear; and
     (b) A letter or other communication from the service member's commanding officer stating that the service member's current military duty prevents either the service member's or dependent's appearance and that military leave is not authorized for the service member at the time of the letter.
     (4) An application for a stay under this section does not constitute an appearance for jurisdictional purposes and does not constitute a waiver of any substantive or procedural defense, including a defense relating to lack of personal jurisdiction.
     (5) A service member or dependent who is granted a stay of a civil action or proceeding under subsection (2) of this section may apply for an additional stay based on the continuing material affect of military duty on the service member's or dependent's ability to appear. Such application may be made by the service member or his or her dependent at the time of the initial application under subsection (2) of this section or when it appears that the service member or his or her dependent is unable to prosecute or defend the action. The same information required under subsection (3) of this subsection shall be included in an application under this subsection.
     (6) If the court refuses to grant an additional stay of proceedings under subsection (2) of this section, the court shall appoint counsel to represent the service member or his or her dependent in the action or proceeding.
     (7) A service member or dependent who applies for a stay under this section and is unsuccessful may not seek the protections afforded by section 4 of this act.

NEW SECTION.  Sec. 6   FINES AND PENALTIES UNDER CONTRACTS. (1) If 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.
     (2) If a service member or his or her dependent fails to perform an obligation arising under a contract and a penalty is incurred arising from that nonperformance, a court may reduce or waive the fine or penalty if:
     (a)(i) The service member was in military service at the time the fine or penalty was incurred; or
     (ii) The action is against a dependent of the service member and the service member was in military service at the time the fine or penalty was incurred; and
     (b) The ability of the service member or dependent to perform the obligation was materially affected by the military service.

NEW SECTION.  Sec. 7   CODEFENDANTS. If the service member or his or her dependent is a codefendant with others who are not in military service and who are not entitled to the relief and protections provided under this chapter, the plaintiff may proceed against those other defendants with the approval of the court.

NEW SECTION.  Sec. 8   STATUTE OF LIMITATIONS. (1) The period of a service member's military service may not be included in computing any period limited by law, rule, or order, for the bringing of any action or proceeding in a court, or in any board bureau, commission, department, or other agency of a state, or political subdivision of a state, or the United States by or against the service member or the service member's dependents, heirs, executors, administrators, or assigns.
     (2) A period of military service may not be included in computing any period provided by law for the redemption of real property sold or forfeited to enforce an obligation, tax, or assessment.
     (3) This section does not apply to any period of limitation prescribed by or under the internal revenue laws of the United States.

NEW SECTION.  Sec. 9   This chapter may be known and cited as the Washington service members' civil relief act.

NEW SECTION.  Sec. 10   Captions used in this act are no part of the law.

NEW SECTION.  Sec. 11   Sections 1 through 10 of this act constitute a new chapter in Title 38 RCW.

NEW SECTION.  Sec. 12   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 13   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.