Passed by the Senate January 27, 2012 YEAS 44   BRAD OWEN ________________________________________ President of the Senate Passed by the House February 27, 2012 YEAS 96   FRANK CHOPP ________________________________________ Speaker of the House of Representatives | I, Thomas Hoemann, Secretary of the Senate of the State of Washington, do hereby certify that the attached is SUBSTITUTE SENATE BILL 5627 as passed by the Senate and the House of Representatives on the dates hereon set forth. THOMAS HOEMANN ________________________________________ Secretary | |
Approved March 7, 2012, 2:24 p.m. CHRISTINE GREGOIRE ________________________________________ Governor of the State of Washington | March 7, 2012 Secretary of State State of Washington |
State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 02/21/11.
AN ACT Relating to service members' civil relief; and amending RCW 38.42.010 and 38.42.050.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 38.42.010 and 2006 c 253 s 1 are each amended to read
as follows:
The definitions in this section apply throughout this chapter.
(1) "Business loan" means a loan or extension of credit granted to
a business entity that: (a) Is owned and operated by a service member,
in which the service member is either (i) a sole proprietor, or (ii)
the owner of at least fifty percent of the entity; and (b) experiences
a material reduction in revenue due to the service member's military
service.
(2) "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 than
one-half of the individual's support for one hundred eighty days
immediately preceding an application for relief under this chapter.
(3) "Financial institution" means an institution as defined in RCW
30.22.041.
(4) "Judgment" does not include temporary orders as issued by a
judicial court or administrative tribunal in domestic relations cases
under Title 26 RCW, including but not limited to establishment of a
temporary child support obligation, creation of a temporary parenting
plan, or entry of a temporary protective or restraining order.
(5) "Military service" means a service member:
(a) 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; or
(b) Under a call to service authorized by the governor under RCW
38.08.040 for a period of more than thirty consecutive days.
(6) "National guard" has the meaning in RCW 38.04.010.
(7) "Service member" means any resident of Washington state
((that)) who is a member of the national guard or member of a military
reserve component.
Sec. 2 RCW 38.42.050 and 2006 c 80 s 1 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 a dependent of a
((person)) service member in the military service under this chapter,
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. 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. This notice ((only))
pertains only to a defendant who is a dependent of a member of the
national guard or a military reserve component under a call to active
service, or a national guard member under a call to service authorized
by the governor of the state of Washington, for a period of more than
thirty consecutive days. Other defendants in military service also
have protections against default judgments not covered by this notice.
If you are the dependent of a member of the national guard or a
military reserve component under a call to active service, or a
national guard member under a call to service authorized by the
governor of the state of Washington, for a period of more than thirty
consecutive days, 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 or an
administrative tribunal may presume that you are not a dependent of an
active duty member of the national guard or reserves, or a national
guard member under a call to service authorized by the governor of the
state of Washington, 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."
(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 or administrative tribunal may presume that the defendant is not
a dependent of a ((person)) service member in the military service
under this chapter.
(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.
(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.
(6) No bar to entry of judgment under subsection (4) of this
section or requirement for grant of stay under subsection (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.
(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.
(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.
(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.
(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.