BILL REQ. #: H-2326.1
State of Washington | 59th Legislature | 2005 Regular Session |
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
(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
(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
(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
(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
(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
(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
NEW SECTION. Sec. 8
(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
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.