BILL REQ. #:  H-3792.2 

Read first time 01/19/2006.   Referred to Committee on Judiciary.

     AN ACT Relating to determining the military status of defendants; and amending RCW 38.42.050.

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

Sec. 1   RCW 38.42.050 and 2005 c 254 s 5 are each amended to read as follows:
     (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 under applicable court rules or by law.
     (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)(a) To determine whether or not a defendant is in the military service or a dependent of a person in the military service under this chapter, or whether a defendant is in the military service under the federal servicemembers civil relief act (50 U.S.C. App. 501 et seq.), the plaintiff may serve on or mail via first-class mail to the defendant a written notice in substantially the following form:

     "NOTICE: State and federal law provide protections to defendants who are on active duty in the military service, and to their dependents. To qualify, the service member must be an active duty member of the United States uniformed forces, or a member of the national guard or a military reserve component under a call to active service for a period of more than thirty consecutive days, or a commissioned officer of the public health service or the national oceanographic and atmospheric administration. Dependents of a service member are the service member's spouse, the service member's minor child, or 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.
     One protection provided is the protection against the entry of a default judgment in certain circumstances. If you are: (1) An active duty service member, including a member of the national guard or a military reserve component under a call to active service for a period of more than thirty consecutive days; or (2) the dependent of such a member of the national guard or a military reserve component; or (3) a commissioned officer of the public health service or the national oceanographic and atmospheric administration, you should notify the plaintiff or the plaintiff's attorneys in writing of your status as such within twenty days of the receipt of this notice. If you fail to do so, then a court may presume that you are not an active duty service member, a dependent of an active duty member of the national guard or reserves, or a commissioned officer of the public health service or the national oceanographic and atmospheric administration, and proceed with the entry of an order of default and/or a default judgment without further proof of your status. Your response to the plaintiff or plaintiff's attorneys about your status does not constitute an appearance for jurisdictional purposes in any pending litigation nor a waiver of your rights under state or federal law."

     (b) If the notice is either served on the defendant twenty or more days prior to an application for an order of default or a default judgment, or mailed to the defendant more than twenty-three days prior to such application, and the defendant fails to timely respond, then for purposes of entry of an order of default or default judgment the court may presume that the defendant is not in the military service, or a dependent of a person in the military service, or a commissioned officer of the public health service or the national oceanographic and atmospheric administration.
     (c) Nothing prohibits the plaintiff from allowing a defendant more than twenty days to respond to the notice, or from amending the notice to so provide.
     (4) 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))) (5) 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. The defendant's failure to communicate or cooperate with counsel after having been contacted is not grounds to find that counsel has been unable to contact the defendant or that counsel has been unable to determine if a meritorious defense exists.
     (((5))) (6) No bar to entry of judgment under subsection (((3))) (4) of this section or requirement for grant of stay under subsection (((4))) (5) of this section precludes the entry of temporary orders in domestic relations cases. If a court or administrative tribunal enters a temporary order as allowed under this subsection, it shall include a finding that failure to act, despite the absence of the service member, would result in manifest injustice to the other interested parties. Temporary orders issued without the service member's participation shall not set any precedent for the final disposition of the matters addressed therein.
     (((6))) (7) 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 RCW 38.42.060.
     (((7))) (8) A person who makes or uses an affidavit permitted under this section knowing it to be false, is guilty of a class C felony.
     (((8))) (9) 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.
     (((9))) (10) 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.