2173-SAMSJUDS2896.1SHB 2173S COMM AMDBy Committee on Judiciary Strike everything after the enacting clause and insert thefollowing:NEW SECTION.Sec. DEFINITIONS. The definitions in thissection apply throughout this chapter. (1) "Dependent" means: (a) The service member's spouse; (b) The service member's minor child; or (c) An individual for whom the service member provided more thanonehalf of the individual's support for one hundred eighty daysimmediately preceding an application for relief under this chapter. (2) "Judgment" does not include temporary orders as issued by ajudicial court or administrative tribunal in domestic relations casesunder Title 26 RCW, including but not limited to establishment of atemporary child support obligation, creation of a temporary parentingplan, or entry of a temporary protective or restraining order. (3) "Military service" means a service member under a call toactive service authorized by the president of the United States or thesecretary of defense for a period of more than thirty consecutive days. (4) "National guard" has the meaning in RCW 38.04.010. (5) "Service member" means any resident of Washington state that isa member of the national guard or member of a military reservecomponent.NEW SECTION.Sec. APPLICABILITY OF CHAPTER. (1) Any servicemember who is ordered to report for military service and his or herdependents are entitled to the rights and protections of this chapterduring the period beginning on the date on which the service memberreceives the order and ending one hundred eighty days after terminationof or release from military service. 1 (2) This chapter applies to any judicial or administrativeproceeding commenced in any court or agency in Washington state inwhich a service member or his or her dependent is a defendant. Thischapter does not apply to criminal proceedings. (3) This chapter shall be construed liberally so as to providefairness and do substantial justice to service members and theirdependents.NEW SECTION.Sec. PROTECTION OF PERSONS SECONDARILY LIABLE.(1) Whenever pursuant to this chapter a court stays, postpones, orsuspends (a) the enforcement of an obligation or liability, (b) theprosecution of a suit or proceeding, (c) the entry or enforcement of anorder, writ, judgment, or decree, or (d) the performance of any otheract, the court may likewise grant such a stay, postponement, orsuspension to a surety, guarantor, endorser, accommodation maker,comaker, or other person who is or may be primarily or secondarilysubject to the obligation or liability the performance or enforcementof which is stayed, postponed, or suspended. (2) When a judgment or decree is vacated or set aside, in whole orin part, pursuant to this chapter, the court may also set aside orvacate, as the case may be, the judgment or decree as to a surety,guarantor, endorser, accommodation maker, comaker, or other person whois or may be primarily or secondarily liable on the contract orliability for the enforcement of the judgment decree.NEW SECTION.Sec. WAIVER OF RIGHTS PURSUANT TO WRITTENAGREEMENT. (1) A service member may waive any of the rights andprotections provided by this chapter. In the case of a waiver thatpermits an action described in subsection (2) of this section, thewaiver is effective only if made pursuant to a written agreement of theparties that is executed during or after the service member's period ofmilitary service. The written agreement shall specify the legalinstrument to which the waiver applies and, if the service member isnot party to that instrument, the service member concerned. (2) The requirement in subsection (1) of this section for a writtenwaiver applies to the following: (a) The modification, termination, orcancellation of a contract, lease, or bailment; or an obligationsecured by a mortgage, trust, deed, lien, or other security in the 2 nature of a mortgage; and (b) the repossession, retention, foreclosure,sale, forfeiture, or taking possession of property that is security forany obligation or was purchased or received under a contract, lease, orbailment.NEW SECTION.Sec. PROTECTION OF SERVICE MEMBERS AGAINSTDEFAULT JUDGMENTS. (1) This section applies to any civil action orproceeding in which a service member or his or her dependent is adefendant and does not make an appearance under applicable court rulesor by law. (2) In any action or proceeding covered by this section, the court,before entering judgment for the plaintiff, shall require the plaintiffto file with the court an affidavit: (a) Stating whether the defendant is in military service, or is adependent of a service member in military service, and showingnecessary facts to support the affidavit; or (b) If the plaintiff is unable to determine whether the defendantis in military service or is a dependent of a service member inmilitary service, stating that the plaintiff is unable to determinewhether the defendant is in military service or is a dependent of aservice member in military service. (3) If in an action covered by this section it appears that thedefendant is in military service or is a dependent of a service memberin military service, the court may not enter a judgment until after thecourt appoints an attorney to represent the defendant. If an attorneyappointed under this section to represent a service member or his orher dependent cannot locate the service member or dependent, actions bythe attorney in the case do not waive any defense of the service memberor dependent or otherwise bind the service member or dependent. (4) In an action covered by this section in which the defendant isin military service or is a dependent of a service member in militaryservice, the court shall grant a stay of proceedings until one hundredeighty days after termination of or release from military service, uponapplication of defense counsel, or on the court's own motion, if thecourt determines that: (a) There may be a defense to the action and a defense cannot bepresented without presence of the defendant; or 3 (b) After due diligence, counsel has been unable to contact thedefendant or otherwise determine if a meritorious defense exists. (5) No bar to entry of judgment under subsection (3) of thissection or requirement for grant of stay under subsection (4) of thissection precludes the entry of temporary orders in domestic relationscases. If a court or administrative tribunal enters a temporary orderas allowed under this subsection, it shall include a finding thatfailure to act, despite the absence of the service member, would resultin manifest injustice to the other interested parties. Temporaryorders issued without the service member's participation shall not setany precedent for the final disposition of the matters addressedtherein. (6) If a service member or dependent who is a defendant in anaction covered by this section receives actual notice of the action,the service member or dependent may request a stay of proceedingspursuant to section 6 of this act. (7) A person who makes or uses an affidavit permitted under thissection knowing it to be false, is guilty of a class C felony. (8) If a default judgment is entered in an action covered by thissection against a service member or his or her dependent during theservice member's period of military service or within one hundredeighty days after termination of or release from military service, thecourt entering the judgment shall, upon application by or on behalf ofthe service member or his or her dependent, reopen the judgment for thepurpose of allowing the service member or his or her dependent todefend the action if it appears that: (a) The service member or dependent was materially affected byreason of that military service in making a defense to the action; and (b) The service member or dependent has a meritorious or legaldefense to the action or some part of it. (9) If a court vacates, sets aside, or reverses a default judgmentagainst 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 fidepurchaser for value.NEW SECTION.Sec. STAY OF PROCEEDINGS WHEN SERVICE MEMBER HAS 4 NOTICE. (1) This section applies to any civil action or proceeding inwhich a defendant at the time of filing an application under thissection: (a)(i) Is in military service, or it is within one hundred eightydays 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 orproceeding in which a service member or his or her dependent describedin subsection (1) of this section is a party, the court may on its ownmotion and shall, upon application by the service member or his or herdependent, stay the action until one hundred eighty days aftertermination of or release from military service, if the conditions insubsection (3) of this section are met. (3) An application for a stay under subsection (2) of this sectionshall include the following: (a) A letter or other communication setting forth facts stating themanner in which current military duty requirements materially affectthe service member's or dependent's ability to appear and stating adate when the service member or dependent will be available to appear;and (b) A letter or other communication from the service member'scommanding officer stating that the service member's current militaryduty prevents either the service member's or dependent's appearance andthat military leave is not authorized for the service member at thetime of the letter. (4) An application for a stay under this section does notconstitute an appearance for jurisdictional purposes and does notconstitute a waiver of any substantive or procedural defense, includinga defense relating to lack of personal jurisdiction. (5) A service member or dependent who is granted a stay of a civilaction or proceeding under subsection (2) of this section may apply foran additional stay based on the continuing material affect of militaryduty on the service member's or dependent's ability to appear. Suchapplication may be made by the service member or his or her dependentat the time of the initial application under subsection (2) of thissection or when it appears that the service member or his or her 5 dependent is unable to prosecute or defend the action. The sameinformation required under subsection (3) of this subsection shall beincluded in an application under this subsection. (6) If the court refuses to grant an additional stay of proceedingsunder subsection (2) of this section, the court shall appoint counselto represent the service member or his or her dependent in the actionor proceeding. (7) A service member or dependent who applies for a stay under thissection and is unsuccessful may not seek the protections afforded bysection 5 of this act.NEW SECTION.Sec. FINES AND PENALTIES UNDER CONTRACTS. (1) Ifan action for compliance with the terms of a contract is stayedpursuant to this chapter, a penalty shall not accrue for failure tocomply 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 anobligation arising under a contract and a penalty is incurred arisingfrom that nonperformance, a court may reduce or waive the fine orpenalty if: (a)(i) The service member was in military service at the time thefine or penalty was incurred; or (ii) The action is against a dependent of the service member andthe service member was in military service at the time the fine orpenalty was incurred; and (b) The ability of the service member or dependent to perform theobligation was materially affected by the military service.NEW SECTION.Sec. CODEFENDANTS. If the service member or hisor her dependent is a codefendant with others who are not in militaryservice and who are not entitled to the relief and protections providedunder this chapter, the plaintiff may proceed against those otherdefendants with the approval of the court.NEW SECTION.Sec. STATUTE OF LIMITATIONS. (1) The period ofa service member's military service may not be included in computingany period limited by law, rule, or order, for the bringing of anyaction or proceeding in a court, or in any board bureau, commission,department, or other agency of a state, or political subdivision of a 6 state, or the United States by or against the service member or theservice member's dependents, heirs, executors, administrators, orassigns. (2) A period of military service may not be included in computingany period provided by law for the redemption of real property sold orforfeited to enforce an obligation, tax, or assessment. (3) This section does not apply to any period of limitationprescribed by or under the internal revenue laws of the United States.NEW SECTION.Sec. INAPPROPRIATE USE OF CHAPTER. If a courtdetermines, in any proceeding to enforce a civil right, that anyinterest, property, or contract has been transferred or acquired withthe intent to delay the just enforcement of such right by takingadvantage of this chapter, the court shall enter such judgment or makesuch order as might lawfully be entered or made concerning suchtransfer or acquisition.NEW SECTION.Sec. This chapter may be known and cited as theWashington service members' civil relief act.NEW SECTION.Sec. Captions used in this act are no part ofthe law.NEW SECTION.Sec. Sections 1 through 12 of this actconstitute a new chapter in Title 38 RCW.NEW SECTION.Sec. If any provision of this act or itsapplication to any person or circumstance is held invalid, theremainder of the act or the application of the provision to otherpersons or circumstances is not affected.NEW SECTION.Sec. This act is necessary for the immediatepreservation of the public peace, health, or safety, or support of thestate government and its existing public institutions, and takes effectimmediately. 7 SHB 2173S COMM AMDBy Committee on Judiciary On page 1, line 1 of the title, after relief; strike theremainder of the title and insert adding a new chapter to Title 38RCW; prescribing penalties; and declaring an emergency.--- END --- 8